need scarcely be added that the presumption against the will is very much strengthened by proof of the mental weakness of the testator.1 298. Rule as to Wills made by very Old Persons.— We have seen how difficult it is to draw the line between dotage and dementia-we have seen that many of the symptoms of this disease are incident to the decrepitude of old age, and that in many respects these two states closely resemble one another-but still the distinction must be drawn, and we have in the preceding chapter given the rules by which in most cases the natural decay of life may be recognized as distinct from the unnatural decay of senile dementia. It is necessary to draw the distinction, for the law holds that extreme old age, while it raises a doubt as to the testator's capacity, it does so only to the extent of exciting the vigilance of the Court. This rule is evidently the correct one under the circumstances. It would be absurd to allow old age of itself to be a sufficient ground for predicating incapacity, when we have so many instances of green old age-of men who, even in advanced years, have had the strength, activity, and intelligence of the prime of life; but it would also be absurd to deny that "if a man in his old age becomes a very child again in his understanding, and is become so forgetful that he knows not his own name, he is then no more fit to make a testament than a natural fool, a child, or a lunatic."3 This wise rule has been followed in America. In one case, a person of eighty-six years, and afflicted with disease, was held competent to execute a will. In another, where, although the testatrix was ninety years old, it was shown that the deceased was of sound mind; that the will was in conformity with one executed six years before, when there was no question of her mental capacity, and also with her re Vreeland v. McClelland, 1 Bradf. Sur. 394. Kindleside v. Harrison, 2 Phillim. 449. See Filmer v. Gott, 7 Brown's P. C. 70; Fane v. Duke of Devonshire, 6 Brown's P. C. 137; Wheeler v. Alderson, 3 Hagg. 574; Bonner v. Mathews, Shelford on Lunatics, 2d ed., 327; Bird v. Bird, 2 Hagg. 142; Mynn v. Robinson, 2 Hagg. 179. See also per Cockburn, C. J., in Banks v. Goodfellow, 5 L. R., Q. B. 549, at 567. 31 Wms. Exrs. 36; Griffiths v. Robins, 3 Mad. 191; Mackenzie v. Handasyde, 2 Hagg. 211; Potts v. House, 6 Ga. 324. + Watson v. Watson, 2 B. Monr. 74. peatedly expressed intentions both before and after the date of the last will; that the provisions of the instrument were reasonable, and were carefully read and explained to the testatrix at the time it was executed; and it appeared that no concealment, deception, or influence, had been used to procure the will, it was established. The Judge, in giving his opinion, said: "Great age alone does not constitute testamentary disqualification, but, on the contrary, it calls for protection and aid to further its wishes, when a mind capable of acting rationally and a memory sufficient in essentials are shown to have existed, and the last will is in consonance with definite, long settled intentions, is not unreasonable in its provisions, and has been executed with fairness." That this is a good rule, that it tends to produce very beneficial effects to those who may be weighed down by many years, and who may be surrounded by those whose affection is rooted in expectation, and whose kindly offices are due to their anticipation of pecuniary advantages, is certain. This has been well put by Chancellor Kent. "A man may freely make his testament," he says, "how old soever he may be. *** It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated." The vigilance which the Court brings to bear in all cases where the wills of very old persons come under their notice, is a necessary precaution; but it is unnecessary that the law should go further and presume that the wills of all aged persons are executed by others through or by means of the real testator." Maverick v. Reynolds, 2 Bradf. Sur. 360. See also Bleecker v. Lynch, 1 Bradf. Sur. 458, Van Huss v. Rainbolt, 2 Coldwell, 139. Van Alst v. Hunter, 5 Johnson's Ch. 148. 3 See some recent cases, Kinne v. Johnson, 60 Barb. 69;, Lawrence v. Steel, 66 N. C. 584; Crolins v. Stark, 64 Barb. (N. Y.) 112. 299. Intellectual Feebleness: Legal Relations of.—It follows almost necessarily from what has been already said that mere intellectual feebleness will not be regarded as a disqualifying circumstance when the execution of a testament is considered. It might be argued that even a slight degree of mental weakness filled up the meaning of the phrase "unsound mind, memory, and understanding." But, as has been over and over again shown, the question as to the degree of capacity necessary to the enjoyment of the civil privilege of will-making, is a practical question, one in which the good sense of men of the world is called into action, and consequently not a field for the nice discriminations and hairbalance definitions of science. It may be true that real mental capacity is not the same at night as in the morning; that it varies before a meal and after a meal; that it differs in relation to different diseases; but can a man of the world take such circumstances into his consideration in his dealings with his fellows, and if he cannot, can courts of law be expected to pay attention to the minute changes of mental life which can be weighed in no human scales, and which are due to the most occult causes? Sir James Hannen pointed out definitely that a sound mind "does not mean a perfectly balanced mind. If it did, which of us would be competent to make a will? Such a mind would be free from the influence of prejudice, passion, pride. But the law does not say a man is incapacitated from making a will because he proposes to make a disposition of his property, which may be the result of capricious, of frivolous, of mean, or even of bad motives." And neither does the law hold that a man must be as powerful mentally as he always was; that he must have suffered no diminution of bodily or mental vigor in order to be entitled to execute a will.2 Did it do so, the execution of a will would be well-nigh impossible. But in this connection, the question of undue influence requires to be considered. There are many persons who, either from disease in its earlier advances, or from the natural decay of old 'Boughton v. Knight, 42 L. J Pr. 25. See Crolins v. Stark, 64 Barb. 112; Reynolds v. Rood, 64 Barb. (N. Y.) 256. * See Elliot's Will, 2 J. J. Marsh. 340; Dornick v. Reichenback, 10 S. & R. 84. age, are in a position, while able to form and entertain a sound and rational judgment, to be very easily turned from such a purpose by the threats or persuasions of those persons who are near to them. Duress is to be looked at not only in relation to the strength of him who threatens, but in relation to the weakness of him who is subjected to these threats. Duress is, in its widest sense, to be looked on as the substitution of the will of one person for the will of another by means of threats or violence; but the legal results are the same if such substitution takes place through misrepresentation or fraud. Now, many persons are in such a condition that they may be very easily influenced by the solicitations or the threats, the persuasions or commands of those who are beside them, and although the wills of such persons, had they been made in freedom and fairness, would have been held good and valid, their so-called wills, when obtained under the control of such arts as those we have been describing, cannot in the eye of reason or of law be regarded as their wills at all, and cannot be given effect to as such. In all cases, therefore, of old age or mental feebleness, it is incumbent upon the Court to ascertain whether any undue influence has been brought to bear upon the testator before or at the time of the execution of the will; to see that neither threats or importunities of such a nature as to deprive the testator of free agency have been used.' Where undue influence, fraud, trick, or circumvention of however slight a nature, has been used in relation to the testamentary act, the proof of mental disease will strengthen the case against the will. It has been distinctly held that a pressure of whatever character, whether it acts on the fears or on the hopes of the individual, if so exercised as to overpower volition without convincing judgment, is a species of restraint under which no valid will can be made.2 300. Mental Facility and its Legal Relations.-There It must of course be such importunity as he is too weak to resist-such as will render the act no longer the act of the testator-in order that it may invalidate the instrument. * Hall v. Hall, 31 L, J. P. 40; 17 L. T. 152; S. C. 1 L. R. P. 481. See also Lovett v. Lovett, 1 Foster & F. 581; Boyse v. Rossborough, 6 H. of L. Cas. 2; Parfitt v. Lawless, 2 L. R. P. D. 462; Aswell v. Lomi, 2 L. R. Prob. 477. is a mental condition almost short of weakness which we have noted as the very first stage of the disease which is here under consideration, and which is often present in extreme old age, which has received less attention than it deserved. It may be described as a yielding or facile disposition, and in this condition, although the individual is to all appearance capable, he is very easily influenced, and it behooves Courts of law to recognize this condition, and to take care that wills made during its continuance shall be admitted as the will of the testator only after strict proof that he has not been subjected to any importunity. [210] Dr. Alfred Taylor quotes the following note, for which he says he is indebted to a learned Judge: "Another condition may be noticed which often occurs in the experience of lawyers, and to which medical men in attendance on aged persons do not sufficiently attend. person's mind in extreme old age may be quite intelligent, his understanding of business clear, his competency to converse upon and transact such undoubted, and his bodily strength good; but there may grow upon him a fear and dread of relatives or servants who may have surrounded him, and on whom he may have become perfectly dependent, that his nervous system is wholly overcome so that he has no power to exert his mind in opposition to their wishes, or to resist their importunities. His mind is enslaved by his fear and a feeling of helplessness, so that to that extent, and in matters in which he may be moved by them, he really is facile and imbecile. This state of things seems to be easily brought on in old age, when the faculties are otherwise entire, and the bodily strength considerable. This state of a party's mind at a great age was exhibited in a remarkable case from Scotland, which went to the House of Lords." We do not know to what case Dr. Taylor here alludes, but there are several cases reported in the Scotch reports which show that this condition has been recognized in the courts of that country. Thus in Watson v. Noble's Trustees,' 18th November, 1825, affirmed 29th June, 1827, a deed of settlement executed by a party capable of disposing of her estate, was reduced upon Medical Jurisprudence, by A. S. Taylor, M.D., F.R.S., p. 1093. * 4 Shaw, 200; 2 Wil. & Shaw App. 648. See Berry v. Anderson, 1 Shaw, Session Cases, 66; 2 Sh. App. 212. |