think that his confidence and temerity in anticipating no contradiction was somewhat too great. Thus, from an examination of the American cases, he would have found that it has been held that a loss of mind short of its total absence or perversion will not destroy testamentary capacity,' which places the power of testamentary disposition somewhat low in the scale, and further that in one case it was held that although the testator was incompetent to make a valid contract, yet if he had the capacity to know his estate, the objects of his affections, and to whom he desired to leave his money, his will must stand,2 and that it is admitted that the general rule is that a less degree of mind is requisite to execute a will understandingly than a contract. In early English cases, however, a higher estimate of the mental power necessary to will-making was entertained. Thus Lord Coke laid it down as a rule that the testator must have a "disposing memory," or a "safe and perfect memory." And these words, as interpreted by more recent cases, must be understood to mean a memory which is capable of making the testator cognizant of all his property and all the persons who come reasonably within the range of his bounty." Were it not so were the memory in such a condition that it presented to the mind only one of several persons equally entitled to the testator's remembrance and consideration, and equally endeared to him by their conduct and their love, and were the instrument of

Newhouse v. Godwin, 17 Barb. 236; following Stewart v. Lispenard, 26 Wend. 313. Kirkwood v. Gordon, 7 Rich, 474; Terry v. Buffington, 11 Ga. 337.

3 Converse v. Converse, 21 Vt. 168. See also Coleman v. Robertson, 17 Ala. 84. See also Tomkins v. Tompkins, 1 Bailey, 92. Indeed, in some of the carlier cases, the Court seemed to hold that it required absolute idiocy to invalidate a will.-Dornick e. Reichenback, 10 Serg. & R. 84. In one case, it was asserted at it required no very great share of reason to make a will where there is no fraud or imposition.-Hester v. Lynch, 1 Yeates, 108. In Stevens v. Van Cleve, 4 Wash. C. C. 262, it was sasd that a man may, from age or failing memory, be incapable of understanding all parts of a contract, and yet he may be able to direct the distribution of his property by will. In a Scotch case, Hogg v. Macgill, 4 Mur. 449, it was expressly stated by the Court that it required a less degree of mind to make a testament than to make a bargain. See also Campbell v. Davidson, 4 Murray, 179.

6 Co. Rep. 23, Case of the Marques of Winchester.

5 Harwood v. Baker, 3 Moore, P. C. C. 282, 290; Herbert v. Lounds, 1 Ch. Ca. 24; 1 Dyer, 72 a, in marg.; Right v. Price, 1 Doug. 241; Ball v. Mannin, 3 Bligh, N. S. 1; 1 Dow & Cl. 380; McDiarmid v. McDiarmid, 3 Bligh, N. S. 374. See also Marsh v. Tyrrell, 2 Hagg. 122; Ingram v. Wyatt, 1 Hagg. 401, 3 Hagg. 466; Constable v. Tufnell, 4 Hagg. 465.

disposition made upon this presentation-it could not with any reason be called the testator's will; for will only acts upon knowledge or thought, and is in reality knowledge or thought in act. If therefore through any circumstance either the fraud of an interested party, or the grim fraud of disease, the fact of the existence of any of the real objects of the testator's benevolence is kept from him, and the will is executed under this mistaken impression, it is not his will, for had the defect been supplied, he would possibly have made another disposition. It follows, then, that the testator must have reason and understanding sufficient to comprehend the act he is doing, and it is that reason and mind which constitute what is designated testamentary capacity. In the [211case of Greenwood v. Greenwood,' an action brought to recover estates under a will the validity of which was disputed, the principal indication of insanity relied on being a strange aversion on the part of the testator towards his only brother, his heir-at-law, on a groundless suspicion of the latter having attempted to poison him, Lord Kenyon, in charging the jury, said: "I take it, a mind and memory competent to dispose of property, when it is a little explained, may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wished to dispose of it. If he had a power of summoning up his mind so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will." And Erskine, J., in the 17 case of Harwood v. Baker, in which case a will had been executed in favor of a second wife, to the exclusion of other members of his family, the testator being in a state of weakened and impaired capacity from disease, producing torpor of the brain, and rendering his mind incapable of exertion unless roused, said: "Their lordships are of opinion that in order to constitute a

Sloan v. Maxwell, 2 Green Ch. 572. It is not sufficient that a testator should be corporally present if he is mentally absent when he signed a will.-Right v. Price, 1 Doug. 241; Forman v. Smith, 7 Lansing (N. Y.) 443. See also a Scotch case, Campbell v. Davidson, 4 Mur. 179.

3 Curteis' App.

3 Moore, P. C. C. 282.

BR. INS.-27

sound disposing mind, a testator must not only be able to understand that he has, by his will, given the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others whom, by his will, he is excluding from all participation in that property, and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and more especially when that object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And then, for the question which their lordships propose to decide in this case is, not whether Mr. Baker knew when he executed this will that he was giving all the property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the property of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast some light upon the question as to his capacity."

[212 With regard to the proof of a disposing mind, Brett, J., said, "that it was not sufficient for the testator to understand merely that he was making a will, but they (the jury) had to say whether at the time the will was made the testator had sufficient intelligence to understand substantially the state of his family, and of his affairs, and the disposition of his property, as made by the will, and if he had sufficient power of mind to intend to make such disposition." Again, the words of Cockburn, C. J., in the case of Banks v. Goodfellow, are worthy of attention. "In these cases," he says, "it is admitted on all hands that though mental power may

The American decisions are like the English in this respect.-Clarke v. Fisher, 1 Paige, 171; Den v. Johnson, 2 Southard, 454; Boyd v. Eby, 8 Watts, 66; Shropshire v. Reno, J. J. Marshall, 91; Daniel v. Daniel, 39 Penn. St. 191.

* Butterfield v. Cure, Leeds Summer Assize, 23 Aug. 1870, author's own notes. 35 L. R., Q. B. 549, 560.

be reduced below the ordinary standard, yet, if there be sufficient intelligence to understand and appreciate the [216]testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.' 'Non sani tantum,' says Voet, in his Commentary on the Pandects, founding himself on the language of the code,' 'Sed et in agone mortis positi, seminece ac balbutiente linguâ voluntatem promentes, recte testamentes condunt, si modo mente adhuc valeant."" His lordship then proceeded to examine the grounds of decision in Harrison v. Rowan.' In this case, which was tried in the United States Circuit Court for the District of New Jersey, the presiding Judge laid down the law as follows: "As to the testator's capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be able to make his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, the persons who are to be the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will by the eye of the lawyer, and comprehend its provisions in their legal form, if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of: his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of business, as, for instance, to make contracts for the purchase or sale of property. For most men at different periods of their lives have meditated upon the subject of the disposition of their property 1 Wms. Exrs., 6th ed., p. 37, n. X. 2 Lib. 28, tit. 1, § 36. B. 6, tit. 23, 1. 15.

43 Washington, 585, referred to in Sloan v. Maxwell; 2 H. W. Green, Ch., p. 570.

by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new."1

From these various cases, the true law of this important subject will be readily gathered. The law says that each person who is of sound mind shall be at liberty to dispose of his property by will; and a sound mind, according to law, is one which, at the time of the execution of such an instrument, is not, from a defect of reason, due to disease of mind, incapable of judging of the nature and quality of the act it is doing. The whole of the object which the law has in view is the discovery of the volitional condition of the testator at the time the will was made, the ascertainment of whether or not the alleged will is a true expression of the man's real mind. If the instrument is not such an expression, and if it is really the expression of the will of another, to whose volition the testator was only a hand, then it is no will of his, and the law will not give effect to it as such.3

See also Den v. Van Vancleve, 2 Southard, p. 660; Stevens v. Vancleve, 4 Washington, p. 262; Sloan v. Maxwell, 2 H. W. Green, Ch. 572.

2 Per Sir James Hannen, in Boughton v. Knight, 24 L. J. Pr., p. 25.

But it would be difficult to find a more accurate statement of the law and the reasons for it than that which occurs in Swinburne, pt. 2, sec. 25, pl. 5. "When he that is at the point of death," he says, and the same rule would be accurately applicable to a person in the state of dementia, "and hardly able to speak so as to be understood, doth not make or declare his testament; but at the interrogation of some other demanding of him whether he make this or that man his executor, and whether he give such a thing to such a person, answereth, Yea, or, I do so, in which case it is a question of some difficulty whether the testament be good or not. For if he which doth ask the question of the testator be a suspected person, or be importunate to have the testator speak, or make request to his own commodity, as if to say, Do you make me your executor? Do you give this or that? and, therefore, the testator answer, Yea: It is to be presumed that the testator answered Yea, rather to deliver himself of the importunity of the demandant, than upon devotion or intent to make his will." And he goes on, after adding that persons in such extremity, finding it painful to be disturbed, will give any answer to be quiet; and that some crafty persons take advantage of this circumstance to obtain wills in their own favor. He goes on to give the case of a monk who came to a gentleman, then in extremis, to make his will. The monk asked the gentleman if he would give such a manor and lordship to his monastery. The gentleman answered, Yea. Then if he would give such and such estates to such and such pious uses. The gentleman answered Yea to them all. The heir-at-law, observing the covetousness of the monk, and that all the estate would be given from him, asked the testator "if the monk was a very knave," and he answered. Yea. And upon the trial, “for the reasons above said, it was adjudged no will"