upon this evidence the jury, being guided to the conclusion, were of opinion that the prisoner was so insane as to be irresponsible for the crime with which she was charged, and regarded the delusions not as constituting the real symptoms of the disease, but as indicating the existence of grave and increasing organic mischief and mental disease.' Sufficient then has, it seems to us, been said to show the satisfactory nature of the rule of law as it bears upon cases of monomania; and what has been already stated will serve to illustrate the principles and to show in what class of cases this plea is likely to be successful, where care is necessary in the discovery of the local or general character of the disease, and what precautions it will be well to take in all such cases. We propose in the next place to consider the testamentary capacity of those persons who are laboring under mania. 8142. Mania and Testamentary Capacity.-To be enabled to make a will, a man must be of sound mind, memory, and understanding. "In one sense," Sir James Hannen remarked, "the first phrase, 'sound mind,' covers the whole subject, but emphasis is laid upon two particular functions of the mind which must be sound in order to create capacity for the making of a will, for there must be memory to recall the several persons who may be supposed to be in such a position as to become the fitting objects of the testator's bounty: above all, there must be understanding to comprehend their relations to himself and their claims upon him." There cannot be much doubt that this is a correct exposition of the law with regard to wills. It has been enunciated over and over again in very many different phrases, but it was always the same thing although differently clothed. The real difficulty in this, as in all other cases, is to decide upon the degree of sound mindedness which will entitle a person to make a will. With regard to the disease here alluded to, no question is likely to arise: the description which has been given in the preceding chapter of mania would convince those who have not had opportunities of observing the disease, that there is little likelihood of a 1 Shaw, 567. Boughton v. Knight, 42 L. J,, p. 25. person who is affected with this disease making a testamentary instrument, and that even if in his wild eccentricity he should attempt to do so, there could be little difficulty felt in deciding that he was not of sound mind, that his memory was treacherous, and that his judgment was dethroned. Instead of one word sounding of folly, there would be whole movements in the key.' 2143. Degree of Capacity required to Make a Will.– Without entering upon the argument to which we have alluded, as to whether it requires more mind to enter into contract or to make a will, which might be debated many times without having a satisfactory conclusion for result, we may point out that it does not require any very great amount of capacity to make a will. Every man is supposed to be able to leave his property to whom he likes by such an instrument; and it is only by proof that he is incapable of doing so with a clear understanding of the effect of the instrument, and with a desire that it should operate in that way, that he is deprived of this power, or that, if an instrument is set up which pretends to have been the product of such a state of mind, it is, on proof of the reverse, pronounced invalid. We may again quote the words of Cockburn, C. J., with reference to this matter. He said: "It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause-namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity, or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In those, it is admitted cn all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains." This doctrine, like that last See 34 and 35 Henry VIII., c. 5, § 14; Swinb. on Wills, by Powell, vol. 1, p. 119; Evans v. Knight, 3 Hagg. 598. * Sutton v. Sadler, 3 C. B., N. S. 87; 26 L. J., C. P. 284. See also Symes v. Green, 1 S. & T. 401; Evans v. Knight, 3 Hagg. 598. Banks v. Goodfellow, 5 L. R., Q. B. 546, at p. 567. alluded to, is established law, and is acted upon universally in England, in Scotland, and in America. 144. Difficulties of Proof.-The rule of law is simple and, as it seems to us, excellent, but the difficulty is to get reliable testimony on the point. In will cases, more than in others, the testimony of witnesses is unsatisfactory and unreliable. This may be accounted for by the fact that all questions as to whether the testator understood what he was doing, whether he recognized certain persons and knew that they were related to him, and the like, can be answered only from opinion. Again, the facts inquired into may have occurred a considerable time before; and when one expresses an opinion as to the mental condition of a dead man, one can be contradicted only by other opinions which may be as worthless, and not by the fact of a living man acting in such a way as to belie one's testimony. However it arises, there can be no doubt of the fact. "One person," said Sir John Nicholl, "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 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 complicated 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. Now, where opinions are formed by such different standards, it is obvious much variety must take place." And the same Judge 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 con Kinleside v. Harrison, 2 Phillim. 456, 457 trariety proceeds from the obvious grounds, that of the witnesses no two possibly have seen the party whose estate is deposed to under precisely the same circumstances, and that each again of the several witnesses, no matter how numerous, measures possibly testamentary capacity by his own particular standard. These sources of discrepancy, and many more might be enumerated, are common to all cases of this description. There is an additional source, where the transaction of which they have to speak is remote, a circumstance sufficient in itself to account for no inconsiderable degree of contrariety of evidence, even where the witnesses have to speak to facts merely, and not of opinious formed and inferences built upon facts, of which most of the evidence furnished upon questions of capacity is commonly made up. If the Court, therefore, on questions of capacity, is accustomed to rely but little upon such evidence so far as it is that of mere opinion, but to form its own judgment from the facts and the conduct of the parties at the time, it becomes it to do so more peculiarly when much of the evidence not merely consists of opinions, delivered long subsequently to the transactions which they profess to have suggested them-upon loose recollections, too, and, in some instances, after repeated discussions of the subject-matter with interested parties."1 145. Testamentary Capacity and Monomania.-Here as in other places, and here more particularly, we must note the influence of delusions upon the capacity to make wills. It is an important inquiry how far a man is incapacitated by the fact that he labors under an erroneous belief and that that erroneous belief is produced by the bad logic of disease. We must consider this question at some length and with the help of all the cases which have come before our Courts. 146. Insanity in Sane Men.-It is not uncommon to find beliefs which must in accuracy be termed delusions, in the minds of persons who are undoubtedly sane. Indeed, as we have over and over again remarked, the line between these two conditions cannot be drawn, and it would seem that it is Shelford on the Law concerning Lunatics, 2d ed. p. 277. See Evans v. Knight, 1 Add. 229, 240; Williams v. Goude, 1 Hagg. 589–591. only when a man is more mad than sane that we call him a lunatic, and when he is more sane than mad, we call him a man of sense and sanity. For just as we find insanity in sane men, so you find sanity in insane men. Every man is an image made like that in the apocalypse of iron and clay. The difficulty is to tell which is which, and the proportion of each in the man. Nothing is more commou than to find persons who are undoubtedly insane managing their own affairs. with much practical ability. We have seen that individuals laboring under general intellectual mania are not utterly incapable of doing certain duties, and we have also seen that many persons who were, so to speak, remarkable for sanity, have yet suffered from illusions of the senses, as Pascal or Swedenborg, or have been conscious of delusions, as Goethe, Luther, or Ben Jonson. Mr. Wharton has collected some interesting instances of what we have called the insanity of sane men. "Lord Kenyon," he says, "could never overcome his fear of poverty and his nervous dread af spending even a farthing except for necessaries. Of Lord Stowell, even after he had accumulated an enormous fortune, Sir Henry Holland, who attended him as physician, writes: 'Lord Alvanleif's description of him as a conceited Muscovy duck had an amazing personal reality about it, felt even by those who know his high merits as a judge and master of international law. His house curiously illustrated the habits of the man, in its utter destitution of all the appliances of luxury and of comfort. The furniture was never either changed or cleaned. Year after year I wrote prescriptions there with the same solitary pen-the single one, I believe, in his possession, and rarely used by himself after his retirement from public business.' Of Lord Erskine, Sir Henry Holland tells us that his mind too, when I knew him, was clouded by little foibles and superstitions. I can recollect a dinner at Sir S. Romilly's where his agitation was curiously shown in his reluctance to sit down as one of thirteen at table, and by the relief he expressed when the fourteenth guest came in.' Lord Eldon laboured under the delusion that even after he had really made up his mind and had so expressed himself lucidly and clearly, there was still ground for him to doubt, and this habit was the cause of great delay to suitors and of |