the correct one was enunciated as follows: "Mere moral insanity-disorder of the moral affections and propensitieswill not, unless accompanied by insane delusions, be sufficient to invalidate a will or to incapacitate a person to make one," and that "if the will and its provisions were not in any way the offspring or result of the delusion, and were not connected with or influenced by it, then she was of sane mind to make the will." In another case, it appeared that the testator was of strong mind, but at the same time he was eccentric, obstinate, and opinionative, but he was nevertheless held to be of sound mind. "His mind," said the Judge in his charge, "was greatly excited on a particular subjecthis park property. He was stingy, and set a high value on his rights of property, but it was no evidence of mental delusion. A man may profess an absurd fondness for music, and play the Pandean pipes; behave like a fool occasionally; may tell his dreams, and call them visions, and may believe them; he may be addicted to telling lies about his will—yet, gentlemen, we could not, on these accounts, pronounce him unfit to manage his affairs or dispose of his property in his lifetime, and could not avoid his deed, nor condemn him to a lunatic hospital as a fit tenant for such an institution."2 152. The Principles of Law in relation to Capacity considered. It is quite necessary, in order thoroughly to understand this subject, to understand the principles upon which the law allows men to dispose of their property by will; and the reasons which have induced the modification of these principles, in cases where insanity causes incapacity, ought to be appreciated. It is certain that every right which is given to a man by law, is given upon the understanding that it shall be exercised under a sense of moral obligation and responsibility. It is such a sense that makes the exercise of all privileges a benefit to the individual, to his neighbors, and to the State. So it 189 is in the right to make a will. The law takes it for granted that the ordinary sentiments of mankind will lead men to the proper exercise of this power. The proper exercise of this power is evidently in most cases a 1 Boardman v. Woolman, 37 N. 3. 100. Turner v. Hand, 3 Wel. J:. 1 3. See Stackhouse v. Horton, 15 N. J. Ch. 252. matter of no difficulty. A man, when he anticipates death, has a pleasure in fecling that what he had no wish to use himself will be enjoyed by others. There is no selfishness in true love. So it happens that a man leaves his property to those who are nearest and dearest to him. Nature makes those persons who are bound by the ties of relationship dearer to a man than others who are not. There is a natural duty which affection turns to pleasure, which makes it right for a man to support his children while they are still too young to be able to support themselves, and it is an extension of this feeling which makes a man leave his property to his children when he dies. Any admirable laws of succession ought to be founded on such facts of human nature, and not upon arbitrary views as to what may be right and good for the advancement of a country. Were it not that men are almost invariably led by their feelings and affections, by their sense of justice and moral obligation to do what is right, this privilege would not have been conferred on them by law. Law could have undertaken the distribution of all property upon the death of every individual, as it at present does in cases of intestacy. But there are excellent reasons why this was not done. Equality is not justice; and the law, in dividing property, must give equally to all in a certain degree, or it must indulge in arbitrary divisions, such as we find in primogeniture, in gavelkind, or in borough English, in relation to real property. But it is evident that any of these may do much injustice, which would not be done if a man had the disposition of his own property. For one person may already be provided for; one may have had large sums expended on education, on advancement in life, while others had not yet come to that time of life when similar acts done in their favor would become possible. Besides, while the law would find it difficult to recognize the claims of necessity, such as age, sex, infirmity, and the like, and could not be cognizant of friendship, love, tried service, long-standing obligations, which are also claims, the man himself could recognize and reward these, as they undoubtedly deserve to be recognized and rewarded. Besides, this power is a most important right incident to the possession of property. If a man had not power to recognize love and affection, to reward duty 2 [190] done, and worthy conduct, who would respect the old man when he came to be weak? Human nature has an abhorrence of weakness. In some nations they put the aged to death. "We do not count a man's years until he has nothing else to count."1 But with us age is not a reason for neglect, and weakness is a reason for more kindly attention. "It is one of the painful consequences of extreme old age," says Chancellor Kent, "that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives a man over the disposal of his property is one of the most efficient means by which he has, in protracted life, to command the attentions due to his infirmity." For these reasons, then, the possession of the power of disposition is evidently one of value to those to whom it is intrusted, and of importance to the interests of all. As the respect which is continued to a man in consequence of this power, even when he is in extreme old age, is an incentive to the acquisition of wealth, and to the practice of prudence and forethought which accompany thrift and frugality, the English law, then, leaves everything to the unfettered discretion of the testator, upon the principles above alluded to. But it is essential to the exercise of such a power that the individual to whom it is intrusted should be in a condition to understand the nature of the dispository act and appreciate its effects, that he should know what property he has to dispose of, the claims that are upon him, and their relative importance, and should desire that his property should be disposed of in a certain manner. In order that this may be so, it is necessary that no false impressions should exist in his mind at the time of the testamentary act, whether they be induced by the force or fraud of an individual, or by the direr force or fraud of a diseased mind. That disease may, as we have seen in other places, deprive the individual of all knowledge as to his surroundings; it may warp and pervert his affections; it may obliterate his sense of moral obligation, of justice, of truth; it may change, without other cause, love to hate, friendship to enmity; it may deprive him of all desire Emerson's Society and Solitude, p. 270. as to the disposition of his property, and all knowledge of the amount or extent of the property of which he has a right to dispose. We have in this way arrived at a certain standard, which will enable us in all cases to ascertain the amount of mental power which is [191] necessary to constitute the capacity of disposing of property by will. And this is true, whether the incapacity is produced by means of moral or intellectual mania-by means of imbecility or dementia. In 153. The Rule as to Delusion and Capacity as definitely settled.-This principle has been followed in a recent case in which the question as to whether a delusion, which was not calculated to influence the disposition of property, should be held to invalidate the capacity was tried. every respect the judgment in this case is most instructive. The case referred to is that of Banks against Goodfellow.' The facts in this case were these: the testator had been confined as a lunatic for some months in 1841, and he remained subject to delusions that he was personally molested by a man who had been dead for years, and that he was pursued by evil spirits whom he believed to be visibly present, and it was proved that these delusions had existed between 1841 and the date of the will, and also between that date and the testator's death in 1865. Some contradictory evidence was given, as is usual in such cases, as to the testator's capacity to manage his own affairs, but it was admitted that at times he was incapable of making a will. The question which was left to the jury was whether at the time of making the will the testator was capable of having such knowledge and appreciation of facts, was so far master of his intentions, and free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it, and they were directed that the mere fact of the testator's being able to recollect things, or to converse rationally on some subjects, or to manage some business, would not be sufficient to show he was sane, while on the other hand slowness, feebleness, and eccentricities, would not be sufficient to show he was insane; and that the whole burden of showing that the testator was fit at the time was on the party claiming under the will. 15 L. R., Q. B. 549. Lord Cockburn, C. J., in delivering judgment, said that "it was necessary to consider how far such a degree of unsoundness of mind as is involved in the delusions under which this testator laboured would be fatal to testamentary capacity; in other words, whether delusions arising from mental disease, but not calculated to prevent the exercise of those faculties essential to the making of a will, or to interfere with the consideration of the matters which should be weighed and taken into account on such an occasion, and which delusions nad, in point of fact, no influence [192] whatever on the testamentary disposition in question, are sufficient to deprive a testator of testamentary capacity and to invalidate a will." He then examined the evidence which was adduced in proof of the existence of partial insanity, and after an exhaustive consideration of what has been said by the text writers in this and other countries concerning this subject, he proceeded to consider some of the cases which have been decided in English and American courts of law in which questions of capacity have been raised. In the course of his judgment he said: "No doubt when the fact that the testator had been subject to any insane delusion is established a will should be regarded with great distrust, and every presumption should in the first instance be made against it. When insane delusion has once been shown to have existed it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form, or instance, in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property; and the presumption against a will made under such circumstances becomes additionally strong where the will is, to use the term of the civilians, an inofficious one, thaf is to say, one in which natural affection and the claims of near relationship have been disregarded. But when in the result the jury are satisfied that the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under such circumstances should not be upheld. Such an inquiry may involve, it is true, considerable difficulty, and require much nicety of discrimination, |