In the case of Waring v. Waring,' however, a very different doctrine was laid down by the Privy Council. There it was held that the proved existence of partial insanity or monomania was fatal to the validity of a will made by the person thus affected, even although the delusion might be unconnected in any way with the testamentary act or with the objects of the will. It is true that the Court went out of its way to give this decision. In the case the question of monomania was not really raised. It appeared that the testatrix, who was old at the time the will was executed, was exceedingly penurious and eccentric; that she was easily excited to anger, and was in the habit of quarrelling with her servants; that on occasion she gave way to erotic ideas and indulged in obscene conversation. She believed that Lord Melbourne and Lord John Russell prowled about her house disguised as fishwomen, attracted thither by her charms and a desire to enjoy them. She, as it was also proved, harbored the delusion that the brother whom she disinherited had joined the Catholics, and was also in the habit of coming about her house incognito. Here there could be no doubt about the general character of her insanity, and her general incapacity to dispose of her property by will. It would have been absurd to say that she was laboring under monomania. Yet the Court, by Lord Brougham, who delivered the judgment, said that "the question being whether the will was duly made by a person of sound mind or not, our inquiry, of course, is, whether or not the party possessed his faculties, and possessed them in a healthful state.” *** Again, he remarked that because the mind was one and indivisible" we therefore cannot in any correctness of language speak of general or partial insanity." And after further discussion, he said: "It follows, from thence, that no confidence can be placed in the acts or in any act of a diseased mind, however apparently rational that act may be, or may in reality be." And the result of his long and elaborate judgment was that the mind must be sound throughout in order to entitle a man to exercise his power of will-making. In the more recent case of Smith v. Tebbitt,' the same rule was followed by Lord Pen 1 zance, who stated the law as follows: "A person who is affected by monomania, although sensible and prudent on subjects and occasions other than those upon which his infirmity is commonly displayed, is not in law capable of making a will. *** For I conceive the decided cases to have established this proposition, that if disease be once shown to exist in the mind of the testator, it matters not that the disease be discoverable only when the mind is addressed to a certain subject to the exclusion of all others, the testator must be pronounced incapable Further, that the same result follows, though the particular subjects upon which the disease is manifested have no connection whatever with the testamentary disposition before the Court." In this case no more than in that of Waring v. Waring did the question of monomania necessarily arise. Mrs. Thwaytes believed herself to be the third person in the Trinity, while a Dr. Simms Smith, to whom she bequeathed all her property, was "The Father." She knew what he was thinking or doing, although he was at a distance from her. People attempted to poison her. Her husband was the Devil. Her heirs-at-law were doomed to perdition. She could never die. She was to ascend to heaven, and she had a tiara made with a view to the translation. She was above God. All these and many more delusions showed that her mind was disordered. Both of these cases, then, were cases of general not of partial insanity. In both, the delusions were multifarious and of the wildest and most irrational character, abundantly indicating that the mind was diseased throughout. "In both these cases," as Cockburn, C. J., remarked in another case to which we shall presently allude, "there existed ample grounds for setting aside the will without resorting to the doctrine in question." And we cannot but think that the late learned Judge of the Probate Court stated the law, as from authority, with too great confidence. The rule in England had been laid down in the case of Dew v. Clark; and if he had inquired into the law of other countries, he would have found that the rule which he refused to recognize had been recommended by many jurists and given effect to by many Courts. Smith v. Tebbitt. 1 L. R., Pro. 398, at 401. * Banks v. Goodfellow, 5 L. R., Q. B. 549. BR. INS.-17 150. The Rules of other Countries considered.---The Ruman law is as defective upon this subject as our own was until a very recent date. French writers are [188] very much divided with regard to this question. M. Troplong' and M. Sacase have adopted the opinion that the mind is a unity, and have argued from this doctrine that if it is diseased in part, it is diseased as a whole. To us it seems as reasonable to argue that a man who is prejudiced with regard to any one subject cannot reasonably believe in any other, or that, as it may with as much truth be asserted, that as body and spirit are a unity, a man with the toothache is deprived of his capacity to dispose of his property by will. On the other hand, however, Legrand de Saulle asserts that "hallucinations are not a sufficient obstacle to the power of making a will, if they have exercised no influence on the conduct of the testator, have not altered his affections, or prevented the fulfilment of his social and domestic duties; while, on the other hand, the will of a person affected by an insane delusion ought not to be admitted if he has disinherited his family without cause, or looked on his relations as enemies, or accused them of seeking to poison him, or the like. In all such cases, where the delusion exercises a fatal influence on the acts of the person affected, the condition of the testamentary power fails, the will of the party is no longer under the guidance of reason: it becomes the creature of his insane delusion."4 151. The Rule of American Law.-The question of how far monomania should be regarded as affecting testamentary capacity has been discussed in several important cases in the United States, and a rule similar to that which we have seen laid down in Dew v. Clark has found favor in the eyes of American Judges. The doctrine enunciated in Le Droit Civil Explgné. Commentaire sur le donations vefs et testaments, tom. ii., § 451-7. La Folie Considérée dans ses Rapports avec la capacité civil, p. 16. ✦ Hoffbauer, in his Médicine Légale. Paris and Fonblanque, Med. Jurisprudence, i., 302. M. Demolombe, in his Cours de Code Napoleon, liv. iii., tit. 2, ch. ii. § 339; M. Castlenau, in his Sur l'Interdiction des Aliéné; Dr. Ray, in his Med. Jurisprudence, 279; and Maygorri, in his Institutizioni di diretto civile Italiano, have argued in a similar manner. 2 Waring v. Waring, and confirmed by Smith v. Tebitt, has been expressly repudiated. Thus, Judge Redfield, in his learned work on the law of wills, says with reference to it: "We have no apprehension that any such rule will permanently obtain currency in the English Courts." And in an important case in the Supreme Court of Connecticut, the Court remarked that "the notion that a single delusion is general insanity, and that the jury are to be so instructed irrespective of the degree or intensity of it, is nowhere countenanced in this country, and not until lately in England." It cannot be doubted for an instant that in most of the American States proof of monomania will not be sufficient to invalidate a will unless it be shown that the delusion affected the disposition. Where that is the case, then the will will be held void even although his general capacity is unimpeached. This point was illustrated by Mr. Justice Sergeant as follows: "If the erroneous and groundless impressions received during the time of his delirium shall retain their hold, whether by some physical derangement of the brain, or by some indelible stamp on the thinking faculties, that person must be considered still under a delusion-the effect continues, and it is only by effects we can judge of the existences of the exciting cause-and if he is under a delusion, though there be but a partial insanity, yet if it be in relation to the act in question, it is well settled it will invalidate contracts generally, and will defeat a will which is the direct offspring of that partial insanity." This principle has been acted upon in various cases. Thus, in Lucas v. Parsons, it appeared that the testator, during an attack of insanity, was most unfavorably impressed, and without any adequate cause, against his eldest son. He was subsequently 6 Law of Wills, 3d ed., Boston, 1869, vol. i., ch. iii., § 10. 2 Durham's Appeal, 27 Conn. 192, 204. 3 Potts v. Howe, 6 Ga. 324; Townshend v. Townshend, 7 Gill, 10; Cotton v. Ulmer, 45 Ala. 378; Johnson v. Moore, 1 Litt. (Ky.) 371; James v. Langdon, 7 B. Mon. 193. 4 Boyd v. Eby, 8 Watts, 71. 5 See also Crum v. Thornly, 47 Ill. 192; Leech v. Leech, 11 Penn. Law J. 179. 6 24 Ga. 640. See also American Seaman's Friend. Soc. v. Hopper, 43 Barb. 625; Florey's Exrs. v. Florey, 24 Ala. 241; Johnson v. Moore, 1 Litt. 371; Jenckes v. Smithfield, 2 R. I. 255. But see Clapp v. Fullerton, 34 N. Y. 190; Kelly v. Miller, 39 Miss. 17; Gass v. Gass, 3 Hump. 278; Thompson v. Quimby, 2 Bradf. Sur. 449, S. C. nom.; Thompson v. Thompson, 21 Barb. 107. restored to reason in every respect except in regard to this insane dislike. He made his will disinheriting his son, and it was held, as the character of the disposition was due to this morbid impression, that it ought not to stand. In the case of Leech v. Leech,' Judge King thus stated the rule of American law: "A monomaniacal delusion inveterately entertained by a testator against one who would otherwise havo been the natural object of his bounty, and shown to be tho reason that has excluded him from it, and to have had no other existence except in the distempered imagination of the testator, would invalidate a will made under such influence; and for the very plain reason, that a will made under the suggestion of such an insane delusion is not what the law requires a will to be, the product of a mind capable of reasoning rightly. For although the law recognizes the difference between general and partial insanity, yet if the will has been made under the influence of such partial insanity, and as the product of it, it is as invalid as if made under the effects of an insanity never so general. Eccentricities of conduct, absurd opinions, or belief in things appearing to us extravagant, although they may be and are evidences of testamentary incapacity, do not constitute it necessarily and in themselves. A man may believe in witches and witchcraft, as it seems this testator did, or, like him, he may have believed his health to have been permanently affected by slow poisons surreptitiously administered to him, and yet be competent to make a will, where such will is not shown to have some connection with such absurd opinions or extravagant belief, and where the mind is shown to be in other respects sound and vigorous, and the judgment intelligent and clear." In a case to which we have already had occasion to refer, the Court stated that "if the testatrix had mind enough to know and appreciate her relations as the natural objects of her bounty, and the character and effect of the dispositions of her will, then she had a sound and disposing mind and memory, although her mind may not be entirely unimpaired." In New Hampshire, too, the doctrine which we here contend to be 1 14 American Law J., N. S. 179. * See Addington v. Wilson, 5 Ind. 137; Kelly v. Miller, 39 Miss. 19 |