294. Illustration of the Legal Principles in relation to Capacity.1 The case of Kindleside v. Harrison' is in many respects worthy of careful consideration in connection with this subject, as it gives the criteria by which the capacity of a testator is to be examined, especially where there is a mass of contradictory evidence, where the testator is far advanced in years, and where occasional incapacity from violent nervous attacks is admitted; and it shows what weight is to be attached to the mere opinion of witnesses. Andrew Harrison made a will and several codicils: the will and the first four codicils were not opposed, the other codicils were contested. The contested codicils were set up by Mr. Kindleside, who was one of the executors and the residuary legatee named in the will, and they were opposed by Mr. Benjamin Harrison, whose appointment as an executor and the benefits he derived under the will were revoked by these codicils. All these instruments were regularly executed, and the grounds of opposition were, that the deceased labored under dementia (mental imbecility,) so as to be incapable of any testamentary act whatever; and with regard to two of the codicils, it was asserted that they were obtained from the deceased by fraud, circumvention, and importunity.

It was proved that the testator was eighty-six or eightyeight 213 when the contested codicils were made. It was also proved that the deceased was liable to certain nervous attacks, and it was admitted that during these attacks he was incapable of any rational act. The deceased was admitted to be deaf, to be nervous and low-spirited when anything affected him. His eyesight was perfect, his bodily powers were not much impaired. It was proved that he could run up stairs. These points were not controverted.

Thirteen witnesses were examined to prove the incapacity of the testator. Most of them spoke of a failure of memory, of a defective power of recognizing people, of his being regarded by those about him as a person of weak mind, and of his appearing to be "lost." But their evidence brought out the fact that he was in many ways vigorous in mind and body,

12 Phillim. Rep. 449.

and that he was able to transact business without assistance. They were all urgent in expressing their opinion that the testator was of unsound mind, and incapable at the time the contested codicils were made of making a valid testamentary instrument. The evidence of William Taylor is very strongly in favor of the hypothesis that the deceased was in a state of senile dementia at the time the contested codicils were executed; but as the learned Judge (Sir John Nicholl) shows,. his evidence is not altogether to be relied upon, and his statements are not consistent with many of the accounts of the testator's condition given by witnesses summoned to prove his incapacity. The allegations made as to his losing his sense of delicacy, his getting up in the night, and his undressing himself in the day, were in effect disproved. The evidence of Mr. Boodle, the solicitor, who had to do with the execution of the codicils, is important. It shows that at the time of their execution, Mr. Boodle, although he thought the deceased's memory defective, did not regard him as permanently incapable, and when compared with the evidence of Mr. Jukes, the medical man, and Mr. Roberts, it appears that any supposition that the testator labored under such mental defect as to render him incapable of a valid testamentary act is untenable.

It was satisfactorily proved that he was able to settle bills, to draw his own drafts, to write letters, to play cards, to go about by himself, and that he comprehended the state of his affairs; and many of the witnesses summoned in support of the codicils assert that they regarded him as a person of sound mind, whose memory and understanding were unimpaired.

[214] With regard to this part of the case the learned Judge says: "Now these accounts, with the bills regularly paid and endorsed, these drafts drawn, these counterchecks registered and marked with the date and sum for which they were drawn, the corresponding entries in the book of expenditure, prove mind and understanding, and thought, judgment, and reflection very strongly, and, in a person of his great age, of a most extraordinary and unusual degree. * * * It is proved to my satisfaction that he possessed his mental fac

ulties in an extraordinary degree, considering his great age, and that he had a testamentary capacity quite equal to a testamentary act of no very complicated nature."

As to the allegation that some of the codicils were obtained by fraudulent excitement, and undue solicitation practiced on a weak and unresisting capacity, Sir John Nicholl, after going most carefully into the evidence, decided, upon the whole of the circumstances of the case, that he must proceed to pronounce for the validity of these codicils, which he did with a firm moral conviction that the Court was giving effect to the wishes and intentions of a capable testator.

295. Dementia in relation to Commissions and Testaments. It is well known that the Court of Chancery will grant a commission in cases in which it would be difficult to predicate actual mental disease. It is in the habit of granting a commission where there is a positive incapacity to manage affairs, and that whether this incapacity is due to disease, age, or intoxication. In ex parte Cranmer,2 Lord Erskine describes the requisite incapacity to subject a person to a commission in lunacy in these words: "The party must be one whose understanding is defunct," who has “survived the period which Providence has assigned to the stability of mind." And Lord Eldon, in another case," stated that it must appear "that the object of the commission is of unsound mind and incapable of managing his affairs." These being the grounds upon which a man is deprived of the management of his affairs, it cannot be doubted that it would. seem somewhat illogical to regard these grounds as insufficient for the deprivation of testamentary capacity. The law there is that an inquisition finding a man a lunatic is primâ facie evidence of testamentary incapacity existing during the whole period covered by the inquisition. Although there

1 Ridgeway v. Darwin, 8 Ves. 65. It is not necessary to incapacitate a man from will-making that he should be in such a state as to justify a commission. A man may be unequal to the important act of disposing of his property although he is not utterly void of reason. -Mountain v. Bunnet, 1 Cox, 356; Lord Donegal's Case, 2 Ves., Sen., 407.

* 12 Ves. 445, 452.

'Sherwood v. Sanderson, 19 Ves. 280, 286.

* See Bell's Com. Law of Scotland, Erskine's Principles, Smith's ed., pp. 167, 168; Waddell v. Waddell's Trustees, 7 D. 605; and see Yooloo's Case (special report.)

seems to have been doubt at one time on this question,' it can no longer be doubted that the above is a correct statement of the law. But the existence of such an inquisition does not preclude proof of a lucid interval; and if the provisions of the will were altogether reasonable and provident, and in accordance with the previously expressed intentions of the testator, these circumstances would go far to prove the existence of such a lucid interval as would entitle the testator to make a valid will during its continuance. Thus Dr. Lushington, in one of the cases, said: "It must be admitted that from that verdict [that upon which the comn ission was issued] a legal presumption arises against the validity of the will in question. But I am also of opinion that in endeavoring to measure the strength of that presumption, I am bound to look at all the circumstances attending the inquisition, although not to evidence given thereat."

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2296. Eccentricity does not Incapacitate.-It is important in this place to note that mere eccentricity of conduct or manner will not deprive the person in whom these are manifested of the right to dispose of his property by will. Our readers must be familiar with many curious and odd ways which very frequently become a part of the life of old men, and it is therefore important to recognize the fact that these will not be a ground for holding that any will made by a person thus affected is invalid. A recent decision, already referred to, places this beyond doubt. "In considering the question," said Sir James Hannen, "of degree, large allowance must

! See Mountain v. Bennet, 1 Cox, 356.

Hall v. Warren, 9 Ves. 605; Re Watts, 1 Curt. 594; and see Creagh v. Blood, 2 J. & Lat. 509; Snooks v. Watts, 11 Beav. 105; Cooke v. Cholmondely, 2 Macn. & G. 22; Banatyne v. Banatyne, 16 Jur. 864. See Sir W. Wynn, Judgment in Cartwright v. Cartwright, 1 Phillim. 90.

* See per Lord Eldon, in McAdam v. Walker, 1 Dow, 178. See also Clarke v. Lear, 1 Phillim. 119.

Banatyne v. Banatyne, 16 Jur. 486.

5 The same rule of law is in force in America.—Whitmack v. Stryker, 1 Green, Ch. 8; Titlow v. Titlow, 54 Pa. St. 216; Stackhouse v. Horton, 15 N. J. Ch. (2 McCarter) 202; Robinson v. Robinson, 39 Vt. 269.

642 L. J. Pr. 25; 28 L. J. 562, S. C. See also Judgment of Sir James Hannen in Davis v. Gregory, "Times," 16 Jan. 1873, in which he referred to Mudway v. Croft, 3 Curteis, 671, and Austen v. Graham, 8 Moore P. C. 493. Nor does the fact that the will is harsh, capricious, or cruel, affect its validity,-Sefton v. Hopwood, 1 Foster & F. 578.

Eccen

be made for the difference of individual character. tricities, as they are commonly called, of manner, of habits of life, of amusements, of dress, and so on, must be disregarded. If a man has not contracted the ties of domestic life, or if unhappily they have been severed, a wide deviation from the ordinary type may be expected; and if a man's tastes induce him to withdraw himself from intercourse with friends and neighbours, a still wider departure from the ordinary type must be expected. We must not easily assume that because a man indulges his humours in unaccustomed ways, that he is therefore of unsound mind." And it has been definitely decided that neither peculiarity of character, weakness of understanding, or want of capacity to transact the ordinary affairs of life, will disqualify one to execute a will.'

297. Rule as to Inofficious Wills.-Those wills which are made in disregard of the natural duty and affection of the testator are not held by the English law to be void. But as such wills may be the result of the weak and yielding nature which is produced by disease or age, and may be extorted by the undue influence of those who are about the testator, the law wisely looks with suspicion and jealousy upon such instruments, and requires very clear proof that it was executed according to instructions, and with the full concurrence of the testator, and while he was in possession of such a degree of mental soundness as to be able to comprehend its import. And the necessity for this caution is more urgently shown, and compliance with this rule of proof more strictly compelled, where the will is drawn up at the instance or in the handwriting of the party to be benefited by it.3 It

Potts v. House, 6 Ga. 324; Stubbs v. Houston, 33 Ala. 555. And see Mercer v. Kelso, 4 Grattan, 106; Crolins v. Stark, 64 Barb. (N. Y.) 112; Reynolds v. Rood, 64 Barb. (N. Y.) 256.

2 Wrench v. Murray, 3 Curteis, 623; Montefiore v. Montefiore, 2 Add. E. R. 361, 362; Dew v. Clarke, 2 Add. 207; Broyden v. Brown, 2 Addams, 441.

3 Raworth v. Marriott, 1 Myl. & K. 643. But see Russ v. Chester, 1 Hagg. 227; Martin v. Wotton, 1 Lee, 130, where such wills are held valid when executed in extremis.-Baker v. Batt, 2 Moore P. C. C. 317. See also Delafield v. Parish, 25 N. Y. 9; Barry v. Butlin, 1 Curteis, 637; Crispell v. Dubois, 4 Barb. 398; Hughes v. Meredith, 24 Ga. 325; Paske v. Ollat, 2 Phillim. 323.