the ground that, at the time of executing it, she was in a weak and debilitated state of mind and unable to judge correctly of its effect in depriving herself of all power to alter, and the deed not being her free and voluntary act, although no undue influence had been used to obtain it. Here we have a party capable of disposing of her estate, and whose settlement of it would have been sustained if made in a simple form easily intelligible; and we have no proof that the party founding on the deed had used undue means to obtain it.' It may be well also to allude to Chenie v. Sterling,2 14th November, 1854. This was a transaction in which a gentleman who had been brought by attacks of paralysis into such a state of nervous debility as prevented him from taking any serious or deliberate views on matters of business had purchased an annuity at a disadvantageous price. The jury having found for the pursuer, the defender attempted to set aside the verdict as contrary to evidence, contending that it was necessary to find "some positive fact proved which amounts in itself to a distinct act or piece of circumvention—some trick--some particular practicing on the mind of the party at a particular time-some details, in short, as to acts and practices which the general term circumvention includes; and that if one cannot lay one's hand on distinct instances, detected and proved of particular acts and practices amounting to circumvention there is no ground for supporting the verdict." The Court, however, refused to grant a new trial, holding that where there is evidence of facility and lesion, it is not necessary that anything amounting to actual circumvention should be proved; but it is enough to warrant a verdict if, in the circumstances of the party granting the deed, there was used persuasion, which, acting upon a mind facile and nervously anxious from disease, he was not in a condition to resist." 301. The supposed Recovery of Mental Power before Death.-[209] It has sometimes been thought that even in cases of dementia a brightening of the faculties occurred McNeil v. Moir, 2 Shaw App. 207. 217 Dunlop, Session Cases, 16. See also McDiarmid v. McDiarmid, 4 Shaw, 583, affd. 3 Wils. & Sh. App. 37; Gillespie v. Gillespie, 19 Fac. Col. 280; Scott's Trustees v. Bannerman, 9 Dunlop, 1052. See also White v. Ballantyne, 1 Shaw App. 472. just before death, and that in this way the disposing power might return to a man even after it had been long in abeyance. There is very little foundation for the belief that this happens except in the rarest cases. The ordinary common error, that all insane men become sane before they die may have had something to do with this belief. That it is an error no one who has been present at the deathbeds of the insane can for a moment doubt. Some of those old prejudices were pretty enough, but so are the ruins of abbeys; and it is as unhealthy to live in the one as it is to live in the other. 302. Fallacious Tests of Mental Capacity. It is not enough to establish the fact of disposing capacity that the party was able to answer simple questions affirmatively or negatively with intelligence. Dr. Taylor has suggested that "if a medical man be present when the will is made, he may easily satisfy himself of the state of the mind of the testator by requiring him to repeat from memory the mode in which he has disposed of the bulk of his property," and this has been adopted by Mr. Inderwick as a test of capacity in his work on the Law of Wills, and it will be found that this suggestion is really in accordance with the law laid down (211)in the case of the Marques of Winchester, where it appeared by divers witnesses, and by many notorious circumstances, that the marques being sick et multa provectus senectute was not of sane and perfect memory, such as the law requires at the making of his supposed will. It has been decided that sane memory for the making of a will does not exist in all cases where the party can speak "yea" or "no," or has life in him; nor when he can answer to anything with sense, but he ought to have judgment to discern and to be of perfect memory. There is nothing more apt to mislead a jury in cases in which the capacity of a testator is in question than the evidence of witnesses who say that they have had conversations with the deceased. Such conversations, if they come to be inquired into, amount possibly to nothing but an exchange of the ordinary courtesies of life; and upon such "Law of Wills, p. 17. • Combe's Case, Moore, 757, 3 Jac. 1. Medical Jurisprudence, ed. of 1861, p. 658. proofs of intelligence little or no reliance is to be placed. [212] In some of the most advanced states of mental disease, cases in which no question as to the individual's competency to perform civil acts could arise, the insane person is quite capable of answering the ordinary questions which occur in everyday intercourse. But we will hereafter see that such is the influence of habit that it is powerful to move people evca in sleep, and so it is that a habit of years for a long time resists the progress of disease. No reliance, then, as a test of the capacity of those who are laboring under dementia in its earlier stages is to be placed in such manifestations. 2303. The Duty of Subscribing Witnesses in relation to the Wills of Insane Persons.-Dr. Taylor's remark, that if a medical man is present at the making of a will, he can ascertain the capacity or incapacity of the testator, leads one to the consideration of an important question in relation to this subject. If a medical man, or another person who is asked to be a witness to a will, becomes convinced of the insanity of the testator, ought he or ought he not to refuse to be a witness? Dr. Taylor himself remarks, in continuation of the passage quoted above: "Medical men have sometimes placed themselves in a serious position by becoming witnesses to wills under these circumstances, without first assuring themselves of the actual mental condition of the testator. It would always be a good ground of justification, if, at the request of the witness, the testator had been made to repeat substantially the leading propositions of his will from memory. If a dying or sick person cannot do this without prompting or suggestion, there is reason to believe that he has not a sane and disposing mind." "That the statute," said Lord Camden in Hindou v. Kirsy," "had a main view to the quality of the witnesses, will appear from this consideration, viz., that a will is the only instrument in it required to be attested by subscribing witnesses at the time of execution. It is enough for leases and all other conveyances to be in writing. These were all transactions of health, and protected by valuable considerations and antecedent treaties. The power of a court of equity was fully sufficient to meet with 1 The Statute of Frauds. BR. INS.-28 2 4 Burns' Eccl. Law, 85, 88. every fraud that could be practiced in these cases after the contract was reduced to writing. But a will was a voluntary disposition executed suddenly in the last sickness, oftentimes almost in the article of death. And the only question that can be asked in this case is, Was the testator in his senses when he made it? and consequently the time of execution is the critical moment that requires guard and protection. Here you see the reason why witnesses are called in so emphatically. What fraud are they to prevent? Even that fraud so commonly practiced upon dying men, whose hands have survived their heads; who have still strength enough to write a name or make a mark, though the capacity of disposing is dead. What is the condition of such an object in the power of a few who are suffered to attend him, wheedled or teased into submission for the sake of a little ease. Put to the labourious task of recollecting the full state of all his affairs and to weigh the just merits and demerits of those who belong to him by remembering all and forgetting none. * * * Who, then, shall secure the testator in this important moment from imposition? Who shall protect the heir-at-law, and give the world the satisfactory evidence that he was sane? The statute says three credible witnesses. What is their employment? I say to inspect and judge of the testator's sanity before they attest. If he is not capable, the witnesses ought to remonstrate and refuse their attestation. In all other cases, the witnesses are passive, but here they are active, and, in truth, the principal parties to the transaction. The testator is entrusted to their care. Sanity is the great fact the witness is to speak to when he comes to prove the attestation, and that is the true reason why a will can never be proved as an exhibit viva voce in Chancery though a deed may, for there must be liberty to cross-examine to the fact of sanity. *** From the same consideration, it has become the invariable practice of that Court never to establish a will unless all the witnesses are examined, because the heir has a right to the proof of sanity from every one of them whom the statute has placed about the testator." See Hudson's Case, Skinn. 79; Digg's Case, cited ibid; Walton v. Shelley, 1 T. R. 300; Lowe v. Jolliffe, 1 W. Bl. 365; Rex v. Nueys, Id. 416; Goodtitle v. Clayton, 4 Burr, 2225; Bootle v. Blundell, 19 Ves. 504; Howard v. Braithwaite, 1 Ves. & Bea. 208. Mr. Redfield, after quoting the words of Chancellor Walworth, who said: "No person is justified in putting his name as a subscribing witness to a will unless he knows from the testor himself that he understands what he is doing. The witness should also be satisfied from his own knowledge of the state of the testator's capacity, that he is of sound and disposing mind and memory. By placing his name to the instrument, the witness, in effect, certifies to his knowledge of the mental capacity of the testator, and that the will was executed by him freely and understandingly, with a full knowledge of its contents. Such is the legal effect of the signature of the witness when he is dead or is out of the jurisdiction of the Court"-goes on to remark: "The impression in England is both in the legal and medical profession that one is bound to give directions on such occasions in regard to what the testator is competent to do, and that the medical attendant is responsible that he does not countenance the act of attempting to execute a will after the patient is incompetent to comprehend its import; that by consenting to become a witness of the act he virtually certifies that the testator is of sound disposing mind and memory; that if such proves not to have been the fact, the character of the medical witness is seriously compromised, inasmuch as he is subjected to one or other of the alternatives resulting from the dilemma in which he is thus placed, either that he was incompetent to detect such incapacity, or else that, knowing of its existence, he voluntarily connived at the creation of an instrument of great importance and solemnity while the supposed actor was in a state of mental unsoundness which incapacitated him for its valid execution. Under such circumstances, the connivance may, with some show of reason, be regarded as implicating the medical witness in a virtual fraud upon the legal disposition of the property which would otherwise follow, since the attempt to execute a will at such a time is getting up the shadow of a legal instrument, the effect of which will be, if successfully carried through, to defeat legal rights which have already practically taken effect and become vested when the simulated agent no longer possesses the capacity 1 Scribner v. Crane, 2 Paige, 147, 149. |