# Delafield v. Parish

> New York Surrogate's Court · December 15, 1857 · 1 Redf. 1

URL: https://www.frixlaw.com/law-library/cases/5667565

## Case

- **Full name:** Delafield v. Parish. In the Matter of Proving the Last Will and Testament of Henry Parish
- **Court:** New York Surrogate's Court
- **Decided:** December 15, 1857
- **Citations:** 1 Redf. 1
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Shankland
- **Judges:** Davies, Gould, Selden, Shankland
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Shankland, J.
(delivering the' opinion of the Court of Appeals), says: “ Regarding as I do the cases of Stewart v. Lispenard, and Blanchard v. Nestle, as fixing the standard of testable capacity at any given point above that of the idiot and lunatic, the will cannot be declared void for the want of a sound disposing mind.” (Clarke v. Sawyer, 2 N. Y. [2 Comst.], 498.)
See the observations of Senator Verplanck on the speculative question, whether' the right of disposing of property after death flows from positive law and the policy of society, or is a part of the natural right of property, agreeing with Lord Mansfield (Windham v. Chetwynd, 1 Burr., 414), that “ the power of willing naturally follows the right of property.” (Re msen v. Brinckerhoff, 26 Wend., 333 ; Stewart v. Lispenard, Id., 255, 296-7.)
“ A few affirmative facts showing-understanding, however humble, must, in such an inquiry, directed to the point "of idiocy or total want of reason (not of lunacy, or disturbed or clouded intellect), outweigh very many negative facts. The affirmative facts prove the existence of mind; and when that is once shown, the negative go to show only its defects and weakness, not its entire deprivation. According to the old rule, 6 a wise man does not always show reason, a fool never does.’ ” (Senator Verplanck, in Stewart v. Lispenard, 26 Wend., 310 .)
“ Mere feebleness of intellect, however considerable, in a testator, will not invalidate a will.”
“The cases certainly establish the rule that feebleness of intellect, however considerable, in the testator, shall not invalidate a will.”
“ The reason for sustaining the wills of excessively weak *25 persons (and, by those, I mean persons of the lowest degree of mental capacity, where there is a glimmer rather than light), is, that the weak have the same rights with the prudent or strong-minded to dispose of their property, and that if imbecility, and not a total absence, or rather perversion, of mind, should constitute inability to act, it would be impossible to draw any clear line of distinction, or one which would generally prevail. There is much force in these reasons. At any rate, the rule has been thoroughly established and we must submit to it, whatever may be our. opinion as to its necessity, propriety, or expediency.” (Newhouse v. Godwin, 17 Barb., 236, 257-8 .)
The dissenting' opinion of Mr. Justice Gierke in Thompson v. Thompson, is the only judicial criticism (to be found in our reports) in disparagement of the firm rule of our statutes and decisions on the subject of testamentary capacity. A careful perusal, however, of this well-considered opinion, will show that, after all, the learned judge is disposed to rest the legal consequences of imbecility, or unsoundness of mind, falling short of idiocy or lunacy (the case under consideration being one of alleged aberration of mind), more upon its leaving its subject “ very much to the mercy of designing persons, and exposed to undue influence,” and to approve Senator Verplanck’s proposition (in Stewart v. Lispenard), that though this condition does not destroy testable capacity, it inay, in connection with other evidence, show that the particular .testamentary act “ was the result of fraud, and of abuse of confidence, perhaps of delusion.” (Judge Clerke’s opinion [dissenting,] Thompson v. Thompson, 21 Barb., 107, 127 .)
The rules of our law on the subject of undue 'influence, in connection with testamentary acts, are—
1. That it must come to the substantial texture of fraud or coercion in the procurement of the testamentary acts questioned, to be recognized in the law as undue influence.
2. That it must be proved by the party contesting the testamentary act on that ground ; and the exclusion of any such *26 conclusion forms no part of the proponent’s proofs or argument.
These propositions have never been brought into question; but a brief citation from two cases, to be more specially referred to in another connection, is given.
“In the absence of any inconsistency between the provisions of a will and the declarations of a testator otherwise expressed, or of any affirmative evidence of fraud or undue influence, the court will not speculate as to the motives of the testator, nor, upon mere suspicion, presume procuration by artifice or undue means.”
“ It is sufficient, in the absence of proven fraud or undue influence, and where the requisite capacity exists, to stand by the will. If its provisions be grossly unreasonable or absurd, or opposed to the ascertained dispositions and affections of the party, these circumstances, if shown,'may be of importance, as they reflect upon the question of capacity; but a person of competent mind ‘ is the disposer of his own property, and his will stands as a reason for his acts.’” (Bleecker v. Lynch, 1 Bradf., 458, 472 .)
“Influence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence either by coercion or by fraud.”
“ It is, however, extremely difficult to state, in the abstract, •what acts will constitute undue influence in questions of this nature. It is sufficient to say that, allowing a fair latitude of construction, they must range themselves under one or the other of these heads- — coercion or fraud.”
“ One point, however, is beyond dispute, and that is, that whenever it has been proved that a will has been executed with due solemnities, by a person of competent understanding, and apparently a free agent, the burden of proving that it was executed under undue influence is in the party who alleges it.” (Lord Ch. Cranworth, in Colclough v. Boyse, 6 House of Lords Cases, 45; London Jurist, May, 1857, 373.)
All that relates to the formal authentication of testamentary papers, — all that constitutes the “ factum” of a will as a *27 valid and effectual legal act — is the subject of statutory regulation, both complete and definite.
“ Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
“ 1. It shall be subscribed by the testator at the end of the the will;
“ 2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made, to each of the attesting witnesses;
“ 3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament;
“4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.”
“ Ho will in writing, except in the^cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed; or unless such will be burnt, torn, cancelled, obliterated, or destroyed, &c.” (2 Rev. Stat., 68, §§ 40, 42.)
As no one of these statutory requisites to validity can be dispensed with, so no further requisites of authentication of the instrument propounded as the very will of the testator, can be insisted upon.
The “ declaration of the testator to the witnesses that the instrument is his last will and testament, is plenary evidence, by the statute, that it is so known, understood, and intended by him to be. Ho other evidence to this point can supply the want of this — the want of further evidence can, in no case, disparage the effect of this.” (Remsen v. Brinkerhoff, 26 Wend., 345 .)
*28 Positions of the proponent, and of the contestants Daniel AND JAMES PARISH, AND THE LIMITS OF THE CONTROVERSY BETWEEN .THEM.
First. On the point of testamentary capacity, the proponent contends that Henry Parish, at the time of the execution of each of the codicils in dispute, was neither “ an idiot,” nor “of unsound mind,” hut, on the contrary, “ of sound mind and .memory.” That the bodily disorder, disease, and disability of Mr. Parish, at the times in question, did not affect his testamentary capacity, and are, themselves, the sole and the adequate cause of the appearances which are insisted upon in disparagement of his mental capacity.
On this point the contestants, Daniel and James Parish, are understood to contend that Mr. Parish, at the times in question, was “an'idiot,” incapable of any testamentary act.
Second. On the point of undue influence, or procurement of the codicils in question by fraud or coercion, the propqnent, contends that such influence not only did not exist and has not been proved, but that no particle of proof has been produced tending to show any such influence.
On this point the contestants, Daniel and James Parish, are not understood to contend that any undue influence was exercised over, or upon, Mr. Parish, and so to contend would be fatal to their proposition that he was an idiot, having no testable capacity. But they contend that the codicils in question proceeded wholly from the will and invention of Mrs. Parish, and that all the apparent or alleged intervention of Mr. Parish in the testamentary acts was that of a mere puppet, set up and moved by her.
Third. On the “factum,” or execution and authentication of the codicils in question, no controversy is made.
It will be perceived, then, that the contestation of fact, on the part of the contestants, Daniel Parish and James Parish, is reduced to the proposition that, from the date of the apoplectic blow of July, 1849, the testator was in a condition of idiocy, totally incapable of any testamentary act.
*29 1. This excludes any controversy as to lunacy, insanity, derangement, aberration of mind, hallucinations, or delusions, and their actual or presumable import and influence in the premises. In this we all concur, no facts are brought in evidence tending to show disorder of this nature.
2. It removes the element of uncertainty, misconception, and error, which intervenes in a survey of facts and a comparison of opinions, produced by different observers at different times, of varying moods and fluctuating conditions which belong to the nicer cases of insanity, partial, interrupted, mental, or moral. Here, a continuous, uniform, and well-defined state of mind (or no mind) is in controversy. If he was an idiot when one witness saw him, he was an idiot when each witness saw him.
3. It excludes all claim or argument of undue influence, of which it is the essence that a testable capacity and volition are controlled, in the form of force or fraud, by another’s volition.
4. It puts the issue upon a point of observation, capable of determination, if there. were observers, other than idiots, to give the means of determination.
Thus Judge Clerke says of the characteristics of idiocy: “ It is a congenital obliteration of the chief mental powers, amounting to a great insensibility to external impressions, accompanied by certain physical indications which can never be misinterpreted; indications which proclaim the torpor of the faculties within with as unerring certainty as the rolling eye and staggering gait proclaim the drunkard, or the pallid and hollow cheek the victim of' disease.” (Thompson v. Thompson, 21 Barb., 107, 120 .)
The learned judge speaks of “congenital” idiocy, but no distinction as to the indicia of the state can be, or was intended to be, taken between congenital or supervening (or acquired) idiocy.
This broad and open proposition, in the face of the overwhelming testimony of the numerous and intelligent observers to whose scrutiny Mr. Parish was subjected, and *30 who have sworn to his capacity, would not have been assumed as the necessary basis of his argument against the codicils by the able and sagacious counsel for the contestants, in preference to the twilight region of “ feebleness of mind,” “ lack of spontaneity,” “ undue influence,” “ inofficious will,” which form the staple of so many reported will cases, unless he was forced to it by the compulsion of his own acute and experienced professional perceptions of what was, and what was not, capable of argument.
1. Thus, if intelligence in the testator were admitted into his argument, and so the testimony left to its natural force, according to its plain sense, the degree of intelligence is manifestly either normal or undistinguishable therefrom by any measure of reduction.
2. The testator, standing as an intelligent agent, to maintain the proposition of “ undue influence” upon the evidence, would appal the most intrepid reasoner.
3. To predicate “ inofficiousness” of testamentary dispositions in favor of a wife, in such conjugal relations as are shown, in preference to collateral kindred, in such relations as are shown, would be, in terms, absurd.
4. With intelligence, without undue influence, a testament, not inofficious, requires but the formal proofs to establish the ‘■'■factum}'' to secure its probate. These are incontestable.
In escaping these insurmountable difficulties, the contestants’ counsel braves others, some of which may be noticed.
1. If Mr. Parish were an idiot for seven years, and the counsel can satisfy a judicial inquiry of that fact, Mrs. Parish must have known it through the whole period.
2. Instead, therefore, of proving overweening influence over her husband as the fault or fraud of Mrs. Parish, and this, too, in the particular acts only of the making of the codicils, and this, besides, only committed against the contestants, the proof of the idiocy of Mr. Parish includes the proof of the sudden and universal depravity of Mrs. Parish— making every act and motion of her life a falsehood — every *31 attitude, and word, and thought, a fraud — and, simultaneously, involving an exaltation and expansion of mental and moral power, by‘which, at will, as if a sorceress, she beguiles the intelligence and corrupts the integrity of all who come within her spell.
' 3. By the same necessity the proof must compass the complete overthrow of the whole body of the testimony in the sense in which it was given by tire witnesses, to the absolute prostration of their virtue and their reason, and in mere derision of all that is “ wisest, discreetest, virtuousest, best,” in the society in which we all live.
Thus, tó prove that the apoplectic blow which afflicted the body of Henry Parish overthrew his mind, the counsel, as his best and most probable theory, undertakes to prove that it crushed the moral nature of his wife, and with unspent force promiscuously dispersed, embraced in its catastrophe all those who stood about them.
This is, indeed, the proof of “ ignotum per ignotiui’ — of “ difficile per difficilius” — of the improbable by the impossible. •
The proponent maintains, on these points, these propositions :
First. — Mr. Parish, at the dates of the execution of the several codicils, possessed full testamentary capacity upon any rule or measure that can be claimed.
I. This appears sufficiently from the evidence given by the documentary witnesses to the respective codicils. Their intelligence, character, acquaintance with testator, means of judgment, opportunities of observation, and entire independence, give to their evidence irresistible weight.
II. The witnesses for the contestants, so far from showing deficiency of testamentary capacity, prove its adequacy.
. III. The evidence in support of the documentary witnesses is overwhelming in amount, in weight, in intelligence, in character, in independence, in variety, in opportunities of judging, and in the faculties of measuring and scrutinizing the operations of mind.
*32 Second. — The evidence of the execution of the codicils, of careful and deliberate communication to the testator of the contents of each of them, of scrupulous consultation of the wish of the testator, both formally as to the execution of the several papers, and substantially as to their provisions, of full instructions (in respect of the second and third codicils) directly from the testator to the professional draftsman, is complete. To this no conflicting or contrary evidence is offered. The only question can be, therefore, of either the reliability of the witnesses in their testimony, or the reliability of the method by which the wishes of the testator were communicated or ascertained. There is no view in which any tribunal can judge over these witnesses, and against their evidence, instead of by them, and according to their evidence.
TpiRD. — The codicils were not obtained by undue influ ence — i. e., by either coercion or fraud in any form.
I. As to the first codicil, there can be no pretence of influence by habit or system; there is certainly no evidence of actual influence.
II. The second and third codicils were made at periods in the course of the testator’s health, when he was at the highest ■vigor. There is no evidence of influence in respect of either of them.
Fourth. — The secondary evidence of influence, viz., of a seclusion of the person of the testator, or an exclusion of other probable or natural objects of affection or testamentary care, is wholly wanting in the case. The evidence shows the utmost publicity of life, and unimpeded access to the testator on the part of the contestants. James never sought any intercourse of any kind. Daniel made for himself the only obstacles to a welcome at the house. He had abundant opportunities of intercourse with his brother out of the house, but never availed of any. Exclusion, to be an element in such a case, must be systematic, substantial, and against efforts to gain access. A mere fanciful, sentimental, or conventional exclusion, if any proof of such could be found, is *33 too unsubstantial to be of any weight in the cause. From a voluntary 'withdrawal from intercourse, the influences are wholly against the contestants.
Fifth. — Undue influence is not predicable of a testamentary provision in favor of the wife, filling for the whole period of their married life, and more than a quarter of a century, the true conjugal relation, and in preference not over children, not in the disregard of needy relatives, not in disappointment of any expectations authorized or encouraged, but of one brother in independent circumstances, who maintained no acquaintance with him, and of another of abundant wealth.
Sixth. — The codicils are not inofficious testamentary dispositions, not diversions from any previous testamentary purposes, and not inharmonious with any expressed or proved affections or intentions; but, on the contrary, they are officious,- in union with previous testamentary dispositions, conformed to expressed and proved affections and intentions.
Of the teub weight and impoet of physiological and MEDICAL VIEWS BEARING, OB SUPPOSED TO BEAR, UPON THE PROBABILITIES, OB INFERENCES, AS TO THE CONDITION OF ME. PARISH’S MIND, FROM HIS BODILT DISORDERS.
The contestants might, under the rules of evidence governing such cases, have offered medical witnesses, in the character of experts, to speak upon the case presented by the evidence as to the physical condition of Hr. Parish, upon the-question of the probable or inferable condition of his mind. As the contestants’ views find no support in the “ opinions” of the six medical witnesses examined in the case, and who are entitled to speak in the double capacity of observers and of experts, it would seem important to them to have brought this ancillary evidence of experts, if they could find it, or if they esteemed it significant. Their omission to bring the evidence of experts, then, must be put to the account of its not being obtainable, or not being, useful. Instead of intro *34 ducing opinions of medical experts as evidence, open to the analysis and reduction of cross-examination, the contestants may adduce such opinions, by way of arguments, exposed to no such analysis or reduction. The proponent presents “ A medical consideration of the physical condition of Henry Parish,” by an eminent physician and physiologist, as mainly useful and instructive to the court in two ways.
First. To supply such special knowledge concerning the bodily diseases of apoplexy and paralysis, as will show their relation to the nervous and cerebral system, and aid in the discrimination between physical and mental derangement, as the cause and explanation of the significant appearances in Mr. Parish’s life and conduct, during the period involved in this controversy.
Second. To exhibit, by proofs drawn from the results of medical experience and science, the fundamental truth, that the diseases of apoplexy and paralysis (and whatever others, if any, are imputed to Mr. Parish), are bodily diseases in cause, seat, character, and treatment; that whether mental derangement or debility attends them or flows from them, is an inquiry original and special to each case under observation, and to be answered by a scrutiny applied to the mind and its manifestations; that this mental scrutiny and investigation are governed by the same rules as if the bodily disorders were not present, save only that the derangement and debility which are accounted for as simply affections of the physical frame are to be as absolutely excepted from the mental phenomena and conclusions as if the forms of disease were fever, or gout, or dyspepsia. In other words, that whether a" paralytic’s mind is affected, is an inquiry of the same nature, and to be satisfied in the same manner, as the same inquiry in respect of a man in bodily health or in any other bodily sickness. The universal testimony of medical science and medical authorities shows, that the observation and judgment, concerning the integrity or deterioration of the mental faculties in a patient afflicted with the diseases in question, are as much a matter of direct investigation, applied *35 to the mind itself, as are the observation and judgment, concerning the integrity or depreciation of any bodily function or part, a matter of direct investigation applied to the function or part. From the mental appearances, just as from the bodily, inferences may be drawn as to the seat and gravity of the cause of the paralysis, but no inference arises against the mental faculties, which are observed in play, from the fact of a paralysis, any more than against the motion of a limb or the exercise of a physical function, when the motion and the exercise are manifest. The appearances, mental or bodily, exhibit the nature and extent of the paralytic affection, and no general reasoning as to what might be expected, can, in the least, contradict or displace the actual appearance.
It follows, necessarily, that all' correction or modification of an estimate concerning the state of the intellect of a patient formed upon observations in life, by anatomical or physiological investigation post mortem, is rejected by medical as well as by judicial reasons. Hen tal traits and action observed in life, if they show a rational condition, can never change .their character by a post mortem exploration of disintegration or degeneration of the brain, any more than the motion of the limb or .the function of digestion observed in life, can be displaced by an autopsy of the brain.
So, on the other hand, mental disorder or debility, manifested in life, could never be made mental integrity and vigor by the explorations of anatomy disclosing no adequate cerebral defect, any more than the motion of a limb or the use of a sense, lost in life, would be proved to have been healthful and sound, from no trace appearing of lesion or atrophy of the appropriate nervous or cerebral structure.
The whole method of inductive reason rests upon these principles. The arguments of experts, if any shall be introduced by the contestants, must leave the matter just where they find it; to wit, that no generalizations from the cases of paralysis can show what the state of Hr. Parish’s mind was, but that the observations of those who saw him must furnish the means of judgment. That being established, the weight *36 and import of the experts’ arguments are measured.by the intelligence and candor, circumspection and temper, which they disclose. They carry no such weight or import as materials for the formation of judicial determination, as the evidence of observers, nor as the evidence of mere experts having the sanction of an oath and the test of cross-examination.
James T. Beady and Charles O’Cohoe, . for Oontestahts James and Darnel PamsTi.
Henry Parish, the testator, was a wealthy and respectable Hew York merchant, of competent education and high intelligence. In September, 1842, he made his will, arranging its details in numerous private consultations with Charles G. Havens, Esq., one of the law firm usually employed by him. He was then aged fifty-four years, and had finally retired from business; his wife was aged thirty-seven. They had been then married thirteen years. There never was any issue of the marriage. His estate was then about $732,000. His collaterals were his brother, James Parish, then having six children; his brother, Daniel Parish, then having seven children; his sister, Ann Parish, unmarried, and aged fifty-two years, and his sister, Mrs. A. M. Sherman, having one child.
The dispositions of the will are as follows : he gave to his wife $331,000 ; to his nephew, Henry Parish, the son of his brother Daniel, $35,000 ; to his cousin and namesake, Henry Parish Kernochan, $20,000 ; to his namesake, Henry Parish Conrey, of Hew Orleans, $5,000 ; to his two sisters, Miss Haney Parish, and Mrs. Allen M. Sherman, $20,000 each ; to Mrs. Payne, his wife’s aunt, an annuity valued at $5,000 ; to each of his five executors, as a personal gift, $10,000, making a total of $486,000.
- If his estate should prove sufficient, he further gave a legacy of $10,000 to the seven children of his brother Daniel; to the six children, of his brother James; to his cousins, Mrs. Joseph Kernochan and Mrs. Abeel; to his brothers-in-law, Dr. Edward Delafield and Major Richard Delafield; and *37 to one sister and three sisters-in-law of his wife, making $210,000. The total amount of dispositions was $696,000. The residue he gave equally to his brothers James and Daniel Parish, or the survivor of them, and the issue of the other. He named as executors Daniel Parish, Joseph Kernoehan, Joseph Delafield, Henry Delafield, and William Delafield.
On July 19, 1849, at mid-day, while transacting business in Wall-street, the testator was suddenly stricken down by an apoplectic stroke. This produced hemiplegia on the right side — a permanent disability. According to our view of the evidence, this seizure affected the brain so seriously that the testator was immediately reduced to a state of idiotic dementia, from which mental condition he never recovered in any degree whatever. He survived the event more than six years. His general bodily health was completely restored, his appetite for food returned in its full vigor, he had the full use of one eye and the perfect use of the left arm and hand ; yet he never was able, during all this time, to write, to read, to distinguish one figure or one letter of the alphabet from another, to utter one word, or to give one single reliable indication of intelligence or intention higher in grade 'than such as are exhibited by animals of the dullest species. Of course, he performed no business or other transactions. During all this time he was in the custody of his wife, by whom the residuary legatees were denied access to him. Every transaction concerning his business or property was conducted without any participation on his own part; and nearly every such transaction was controlled and directed by his wife and her agents. Gradually, and as rapidly as practicable, she transferred his personal estate into her own name ; and, at his decease, she claimed nearly the whole of it, on pretence that this continuous succession of transfers to her name constituted so many gifts inter vivas. The first codicil dated August 29, 1849, gave to the wife his newly acquired real estate, worth about $200,000. The second codicil executed September 15, 1853, gave her the same real estate over again, and about $350,000 worth of stocks, &c. It *38 gave also $50,000 to religions and charitable institutions, and revoked the appointment of the testator’s brother Daniel as executor, and it also revoked the $10,000 bequest to him. The third codicil, dated June 15, 1851, made the wife sole residuary devisee, and revoked the residuary bequest to the brothers.
These codicils were dictated by the wife, drawn on her retainer by her counsel, and each was executed by a mark. In fact these marks were all made by the wife’s counsel. He placed the pen in the testator’s left hand, which was perfectly sound, well, and strong; he then drew that hand to the appropriate places; and there, guiding the movement of the pen himself, he, the counsel, made the marks which áre alleged to be the testator’s subscriptions. The case might be said to present complete proof of undue influence and of fraud, and of coercion, buk that one important and indispensable ingredient of such a case is lacking. The testator was in so low a state of idiocy, that, he was incapable of being influenced, deceived, or coerced. The disputed codicils are not his acts.
Fibst Point. The testator had not capacity to make a testament at any time subsequent to his apoplectic seizure' on the 19th of July, 1819.
I. The condition denominated idiocy in the Statute of Wills is not necessarily congenital. It may be produced by reduction of power in the material organ of thought or mind, through natural decay, the gradual operation of disease, or sudden violence. (Swinburne, part 2, § 5; De Witt v. Barley, 17 N. Y., 350 .)
II. It is not necessary to the existence of the state denominated idiocy, that there should be a total absence of perception, memory, or even of reason. Idiocy has never been defined, and never can be; it is a condition which no power of language can adequately describe, although illustrations of its existence may easily be presented. It is a state of mind which may differ from the most perfect mental integrity, only in the degree of power present. Every descrip *39 tian, every illustration, and every instance to be found in the books prove this. (Dean’s Med. Jur., 457; Marquis of Winchester’s Case, 6 Coke R., 23 (a); Comb’s Case, Moore, 759; Herbert v. Lowns, 1 Ch. Rep., 12, 13; Greenwood v. Greenwood, 3 Curt., 336 Append. 30; Ball v. Mannin, 3 Bligh, N.S., 1; Marsh v. Tyrrell, 2 Hagg., 122; Harwood v. Baker, 3 Moore P. C., 282, 290; Jones v. Godrich, 5 Id., 16, 36; Den v. Van Cleve, 2 Southard (N. J.), 589, 661; Den v. Johnson, Id., 454; Goldie v. Murray, 6 Jur., 608; Stulz v. Schœffle, 16 Id., 909; Boyse v. Rossborough, 3 Jur., N.S., 373; S. C., 6 House of Lords Cases, 2, 45; Howard v. Coke, 7 B. Munroe, 655; Elliott's Will, 2 J. J. Marsh., 340; Turner v. Turner, 1 Littell, 101 ; Shropshire v. Reno, 5 J. J. Marsh., 91; Comstock v. Hadlyme Soc., 8 Conn., 254 ; Kinne v. Kinne, 9 Id., 102; Rambler v. Tryon, 7 S. & R., 90; Harrison v. Rowan, 3 Wash. C. C., 580 ; Stevens v. Van Cleve, 4 Id., 262; Sloan v. Maxwell, 2 Green’s Ch. (N. J.), 563; Andress v. Weller, 2 Id., 604; Heister v. Lynch, 1 Yeates (Penn.), 108; Dornick v. Reichenback, 10 S. & R., 84; Tomkins v. Tomkins, 1 Bailey (S. C.), 92; Davies v. Calvert, 5 Gill & John., 269; Black v. Ellis, 3 Hill (S. C.), 68; 2 Evan’s Pothier, 539, et seq.; Clarke v. Fisher, 1 Paige, 171 ; Stewart v. Lis penard, 26 Wend., 290 , 291,Walworth, Ch.; McCully v. Barr, 17 S. & R., 445; Ford v. Ford, 7 Humph., 92 ; Converse v. Converse, 21 Verm., 168 ; Coleman v. Robertson, 17 Ala., 84 ; Kirkwood v. Gordon, 7 Rich. So. Car. Law, 474.)
1. One who could count five, and no further, would show some understanding,' yet he would in law be esteemed an idiot. (Swinburne, part 2, § 4; Den v. Johnson, 2 Southard, 454; Den v. Van Cleve, 2 Id., 589, 661.)
2. One who at a testable age should possess all the knowledge and capacity of a child three years old — and this is considerable — would be esteemed an idiot. (Swinburne, part 2, § 4; Shropshire v. Reno, 5 J. J. Marsh., 91; Walworth, Ch., in 26 Wend., 290 ,291; Howard v. Coke, 7 B. Mun., 655.)
3. The Cretins of the Alps are called idiots in the works which treat of them. They perform all the functions of ani *40 mal life, perpetuate their species, reason well enough to a certain extent, and can perform successfully a limited amount of mechanical labor, and that of a kind requiring some ingenuity.
III. The opinion of Senator Verplanck, in the case of Alice Lispenard’s. Will ( 26 Wend., 296 ), is sometimes referred to as determining that testamentary capacity exists, if there be any mind. This leaves it to be ascertained whether there be any mind; and this, of course, involves the inquiry, what is mind ? Consequently the opinion concludes nothing, and leaves the law as it stood before.
The opinion of a single senator in that court cannot always be deemed an authoritative exposition of the law, even though no other be delivered, and though judgment be according to its conclusion. It was really the decision of a question of fact and not of law.
TV. The onus probandi that the testator was possessed of sufficient mental capacity, is on the party propounding an alleged testamentary paper. If, after all the evidence is in and due consideration is had, the mind of the court is in equilibrio, the paper must be rejected. (Barry v. Butlin, 1 Curteis, 637; 2 Moore’s Privy Council Cases, 480; Broming v. Budd, 6 Id., 430 ; Panton v. Williams, 2 Curt., 530 ; 2 Notes of Cases Supplemental, 21,29; Baker v. Batt, 2 Moore P. C., 317; Crowninshield v. Crowninshidd, 2 Gray, 527 ; Comstock v. Hadlyme, Soc. 8 Conn., 254 ; Gerrish v. Nason, 22 Maine, 438; Cilley v. Cilley, 34 Id., 162; Wallis v. Hodgeson, 2 Atk., 56; 1 Powell on Devises, Jarman’s ed., 81.)
Second Point. If it could be presumed that the testator had testamentary capacity at the times when the marks ■alleged to be his own' were affixed to the codicils, the evidence would exhibit all the features of undue influence, fraud, and coercion to be found in that unfortunately familiar .class of cases.
I. The professional gentleman who drew the instrument, being the agent of Mrs. Parish, and all his little intercourse with the testator being in her presence, arid under her super-' *41 vision, the maxim qui se scripsit heredem, applies. (Paske v. Ollett, 2 Phill., 324 ; Middletown v. Forbes, cited in 1 Hagg., 395; Ingram v. Wyatt, 1 Hagg., 384; Baker v. Batt, 1 Curt., 155 ; 2 Moore P. C., 317; Butlin v. Barry, 1 Curt., 614 ; Durnell v. Corfield, 1 Robert. Eccle. Rep., 51 ; Durling v. Loveland, 2 Curt., 225 ; Croft v. Day, 1 Id., 782; S. C., sub nom. Dufaur v. Croft, 3 Moore P. C., 136; Mitchell v. Thomas, 10 Jur., 461; 12 Id., 967; 6 Moore P. C., 137; Raworth v. Marriott, 1 M. & K., 643; Jones v. Godrich, 5 Moore P. C., 16; Mynn v. Robinson, 2 Hagg., 179; Crispell v. Dubois, 4 Barb., 393 .)
II. All persons but her own friends being excluded, and the testator being completely subject to the will and pleasure of Mrs. Parish for the gratification of his only known desires, i. e., food and drink, he must be regarded as not having been a free agent. (Swinburne, 998, part 7, § 18; Blewett v. Blewett, 4 Hagg., 410; Marsh v. Tyrrell, 2 Id., 84.)
HI. There is a total absence of proof that, in reference to these codicils, there existed spontaneity or even volition. The testator merely yielded to irresistible importunity or force. .(1 Fonblanque's Equity, 6, Am. ed., 1807; 8 Viner's Ab., 167, tit. Devise, Z, 2 pl. 7, a. d. 1791; Swinburne on Wills, part 2, § 25; Green v. Skipworth, 1 Phill., 53 ; Billinghurst v. Vickers, Id., 187; Harwood v. Baker, 3 Moore P. C., 282; Lamkin v. Babb, 1 Swinburne on Wills, § 1; Id., part 7, § 4; Hacker v. Newborn, Styles, 427; Mountain v. Bennett, 1 Cox, 353, 355.)
IY. In the alleged gifts invter vivas and the repetitions of the testamentary grants obtained, we may discern that duplicity in title-making which frequently characterizes this description of fraud. (Vreeland v. McClelland, 1 Bradf., 393,431; Middletown v. Forbes, cited in 1 Hagg., 395; Welles v. Middletown, 1 Cox, 112; 4 Bro. P. C., Toml. ed., 245; Bennett v. Vade, 2 Atk., 324.)
Counsel for the contestants presented, also, certain references to authorities, arranged under the following three heads:
*42 I. The conscience of the court is to be satisfied that the paper in question was the act of a free' and capable testator. The amount of proof required will, of course, vary according to the circumstances of each particular case ; but the rule is invariable. (Baker v. Batt , 2 Moore P. C., 317.)
The same rule was declared and ably vindicated, by the Supreme Court of Massachusetts, in Crowninshield v. Crowninshield ( 2 Gray, 526 ).1 It was there held, that the burden of proving the sanity of a testator is upon him who offers the will for probate, and does not shift, upon evidence of his sanity being given by the subscribing witnesses. This case, at p. 530, overrules what is said in Brooks v. Barrett ( 7 Pick., 99 ).
In Gerrish v. Nason (22 Maine, 438), Whitman, C. J., says : “ The presumption that the person making a will was at the time sane, is not the same as in the case of the making of other instruments ; but the sanity must be proved.” In Cilley v. Cilley (34 Maine, 162), Rice, J., said “ that the burden is upon the appellant to show that the testator was not of sound mind at the time the instrument was executed, if he would set it aside as invalid for that cause.”
In Wallis v. Hodgeson (2 Atk., 56), Lord Hardwicks said: “ It had been determined over and over in .this court, that you must show the person to be of sound and disposing mind, when a will is to be established as to real estate, and especially if there are infants in the case ; proving it to be well executed, according to the statute of frauds and perjuries, is not sufficient.” (Powell on Devises, Jarm. ed., 81.)
The rule as to the onus may be illustrated by other cases. In Powers v. Russell ( 13 Pick., 69 ), it was held, that where the proof on both sides applies to one and the same issue or proposition of fact, the party whose case requires the establishment of such fact, has all along the burden of proof, although the weight in either scale may at times prepon der-* ate. But where he gives jprima-facie evidence of such fact, and the adverse party, instead of producing proof to negative the same fact, proposes to show another and distinct propo *43 sition which avoids the effect of it, there the burden of proof shifts and rests upon the party proposing to show the latter fact.
In Tourtellot v. Rosebrook ( 11 Met., 460 ), in an action to recover damages caused by a fire communicated to the plaintiff’s land from a coal-pit which the defendant lawfully set on fire upon his own land, it was held that the burden of proving the defendant’s negligence was upon the plaintiff, and primarfacie proof of the defendant’s negligence does not throw upon him the burden of disproving it.
In Delano v. Bartlett ( 6 Cush., 364 ), it was held, that where a want of consideration is relied on in defence to an action on a promissory note; and evidence is given on the one side in the affirmative, and on the other in the negative, of the fact of consideration; the burden of proof is on the plaintiff to satisfy the jury, upon the whole evidence of that fact. (S. P., Sperry v. Wilcox, 1 Met., 267 .)
There are dicta, and some decisions in this country, which declare a different doctrine as to the burden of proof from that asserted in the authorities above cited. But there is no opposing decision in which the question has been deliberately examined‘in the light of the decisions cited above. There are also occasional dicta in the ecclesiastical courts, which have sometimes been supposed to be inconsistent with the rule above stated; but, properly understood, those dicta do not conflict with the cases cited. The rule stated above was acted on in Newhouse v. Godwin ( 17 Barb., 236 ).
II. Competency to execute a testament does not exist unless the alleged testator had reason and understanding sufficient to comprehend such an act.
Opposed to the long line of authorities cited under our first point (ante, 38, 39) which establish this rule, is the opinion of Senator Verplanck in Stewart v. Lispenard ( 26 Wend., 255 ).
It is remarkable that the learned senator cites not a single authority relating to testamentary capacity, which supports the standard adopted by him. A large portion of the dicta *44 cited and relied upon by him, relate to an entirely different matter, viz., the prerogative of the crown to take into its custody the persons and estates of idiots and lunatics. This prerogative, being in its nature odious, and liable to abuse, was always viewed with jealousy, and strictly construed. Decisions or opinions in such cases are not authoritative on the subject of testamentable capacity. Indeed this distinction is expressly taken by Swinburne (part 2, § 4). One of the head-notes to Stewart v. Lispenard contains the following sentence: “ Courts, in passing upon the validity of a will, do not measure the extent of the understanding of the testator; if he be not wholly deprived of reason, whether he be wise or unwise, he is the lawful disposer of his property, and his will stands as a reason for his actions.” This is taken substantially from Shelford on Lunacy. It is there said (2 ed., 39): “ A person’s being of weak understanding, is not of itself any objection in law to his disposing of his estates. Courts will not measure the extent of people’s understandings or capacities ; if a man, therefore, be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as a reason for his actions; and there is no such thing as an equitable incapacity where there is a legal capacity.” The only authorities cited by Shelford in support of this paragraph, are Osmond v. Fitzroy (3 P. Wms., 129), and Willis v. Jernegan (2 Atk., 251). Ift fact, however, the paragraph is copied verbatim from a note by Mr. Powell to Swinburne on Wills (vol. 1, p. 127). That note is as follows: “A person’s being of a weak understanding is not of itself any objection in law to his disposing of his estates; Courts will not measure the size of people’s understandings or capacities; if a man, therefore, be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as a reason for his actions. ¡Neither courts of law or equity examine into the wisdom or prudence of men in disposing of their estates; there is no such thing 'as an equitable incapacity when there is a legal capacity.”
*45 Powell’s authority for his note is Osmond v. Fitzroy (3 P. Wms., 129). That case arose upon a bond. The Duke and Duchess of Cleveland intrusted the Lord Southampton, their eldest son (then an infant) to the care of the plaintiff, to attend him in his travels. Lord Southampton, when twenty-seven years of age, was prevailed on by the plaintiff (being still in the service) to give him a bond for £1,000, which was prepared by the plaintiff, and kept secret from the parents. The book says : “There were also some proofs of the weak capacity of the young lord, and that at that time he was unable to raise money to. pay off the bond.” It was held that equity would set aside the bond as obtained by fraud and breach of trust. But Sir- Joseph Jekyll, in delivering his judgment, said: “When a weak man gives a bond, if there be no fraud or breach of trust in the obtaining it, equity will not set aside the bond only (i. e., merely) for the weakness of the obligor, if he be compos mentis i neither will this court measure-the size of people’s understandings or capacities, there being no such thing as an equitable incapacity, where there is a legal capacity.” This, therefore, merely accounts to saying that the standard of capacity is the same in equity as at law, which no one disputes. The learned Sir Joseph Jekyll does not attempt to define what the standard of capacity is either at law or in equity; much less does he say that there must be a total deprivation of reason to constitute incapacity. There would •seem to have been no pretence in this case that Lord Southampton was so imbecile as to be absolutely incapable of contracting. It is observable that the words, “ If he be not wholly deprived of reason,” in the head-note to Stewart v. Lispenard , above cited, are not found either in Powell’s note, or in the case upon which he relies, or in Shelford. In all those books the words are, “ if he be legally compos mentis.'” So in Bath & Montague’s Case (3 Ch. Cas., 107), Holt, C. J., said: “ Be a man wise or unwise, if he be legally compos mentis, he is the disposer of his own property.” The case of Clarke v. Sawyer (2 N. Y. [2 Comst.], 498), *46 left this question untouched. The reporter expressly states that a majority of the court did not pass “ upon the question as to the degree of mental capacity necessary to make a will.” Clerke, J., in Thompson v. Thompson ( 21 Barb., 116 ), shows clearly that the opinion of Senator Yerplanck is not a binding authority.
If Hr. Yerplanck’s opinion could be thought to contain an authoritative enunciation of the law, it is so grossly and mischievously erroneous that it ought to be departed from. It may thus be stated: If mind exist at all, and it be not disordered in its scarcely perceptible manifestations, the individual thus gifted has testable capacity. This is not yet an axiom, nor a landmark of property.
In Blanchard v. Nestle ( 3 Den., 37 ), the then recently promulgated opinion of Senator Yerplanck was given to the jury, and the court in banc, per Jewett, J., concurred. At the same term1 the court, in Osterhout v. Shoemaker ( 3 Den., 37 , note), laid down the same doctrine as to a deed. These judgments are rather instances of obedience to what may have been mistakenly considered paramount authority, of a recent date, than acts of concurrence by judicial persons.
Some additional light, beyond the report of Mr. Wendell, touching this celebrated case, may be found in the Mew York Courier and Enquirer, of April 7, 1842, where an opinion by the Hon. Henry A. Livingston, one of the senators who voted with the majority, is reported. *
*47 Wliat was said in 3 Denio, 37 , with the “ faint praise” of Judge Strong in 17 Barb357, is believed to constitute all that can be found in the Mew York Beports favoring Hr. Verplanck’s doctrine. In Jackson v. King ( 4 Cow., 207 ), *48 there is indeed some pretty loose language. But whatever it may mean, it is- not authoritative on this question.- The same observations apply to Odell v. Buck ( 21 Wend., 143 ), where congenital idiocy or incapacity was the imputation, *49 and Jackson v. King is referred to. The only case out of New York in which Stewart v. Lispenard appears to have been cited with approbation or followed, is Potts v. House (6 Geo., 324). But the Georgia court soon receded from that position. (See Terry v. Buffington, 11 Id., 337, 344 .)
*50 The standard of testable capacity may be illustrated by the case of infants. In the civil and canon law, as administered by the English ecclesiastical courts, boys under fourteen years of age, and girls under twelve, are held to be absolutely incapable of making a will. And this rule seems to have been established upon the single ground that the average of children under these ages have not sufficient judgment and discretion to make a will. If, therefore, the court can be satisfied that the decedent possesses less capacity than an ordinarily gifted boy of fourteen, this would seem to be conclusive against his capacity to make a will. The true standard may also be illustrated by cases of lunacy. It is now conclusively settled in England, that the least particle of lunacy (i. e. delusion) upon-any subject, if firmly seated, render’s the subject absolutely intestable. This was settled by the unanimous judgment of the Judicial Committee of the Privy Council in Waring v. Waring (6 Moore P. C., 341). And see the late case of Dyce Sombre v. Troup (1 Deane, 113, 114). The law being thus strict on the subject of lunacy or mental irregularity, it would seem absurd to adopt Senator Yerplanck’s standard on the subject of idiocy or pure feebleness and lack of power. (See Dr. Push’s Treatise on “ The Diseases of the Mind,” published 1812, in the 13th chapter, which treats of “ Fatuity, or Idiotism.”)
HI. Where testable capacity is doubtful, or, being established, is of a very low grade, the paper propounded as a testament will be rejected, unless the evidence fully establishes the fairness of the transaction, and shows satisfactorily that the decedent really exercised a free and unrestrained volition. (Cockraft v. Rawles, 4 Notes of Cases, 237; Swinburne, part 2, § 25; Green v. Skipworth, 1 Phill., 53 ; Middleton v. Forbes, 1 Hagg., 395; Jones v. Godrich, 5 Moore P. C., 9; Montefiore v. Montefiore, 2 Addams, 354; Brouncker v. Brouncker, 2 Phill., 57 ; Mynn v. Robinson, 2 Hagg., 179; Evans v. Knight, 1 Addams, 237; Harwood v. Baker , 3 Moore P. C., 282; Mountain v. Bennett, 1 Cox, 353; Marsh v. Tyrrell, 2 Hagg., 84.)
*51 John W. Edmonds, for Anne Parish and Ma/rtha Sherman, Contestants.
Henry Parish died March 2d, 1856, leaving a widow, Susan M. Parish, two brothers, Daniel and James Parish, and two sisters, Anne Parish and Martha Sherman. He left no children. On the 20th of September, 1842, he made a will. In July, 1849, he was stricken with paralysis, and remained speechless for the rest of his life, except the occasional utterance of one or. two words. His right side was paralyzed. The muscles of his face soon recovered from the attack, the right leg partially recovered, but the right arm remained affected until his death. And for the residue of his life, viz., from July, 1849, to March, 1856, for a period of about seven years, he communicated thought only by gesticulation, by his countenance, and by sounds indicating yes and no, or assent and dissent. During that period he executed three codicils to his will:
One on the 29th August, 1849 (which was re-executed on the 17th December, 1849); one on the 15th September, 1853; and one on the 15th June, 1854. The chief effect of these codicils was to change the disposition of his estate from his brothers to his wife.
By the will he gave his brother Daniel a specific legacy of $10,000, as an executor, and gave the residuum of his estate, which he valued at about $40,000, to his two brothers. By his codicils, besides specific devises to his wife, he gave her the residuum, revoking the specific bequest of $10,000 to Daniel and the devise of the residuum to the two brothers.
By his will he made thirty-three specific devises, or bequests (besides the residuum). By his codicils he revoked none of those, except the $10,000 .to his brother Daniel, but he added four bequests to charitable uses, amounting to $50,000. By his will (in September, 1842), he gave to his wife real and personal property estimated by him to be worth $331,000.
By his first codicil (in August, 1849), having in the mean time sold his" dwelling and furniture in Barclay-street, which *52 he had valued at $28,000, he devised to his wife his new dwelling, valued at...........$110,000
The furniture in which had by that time come to be worth .......... 50,000
And a store in Wall-street, which he had bought in 1847, and was valued at ....... 70,000
Making a total, by that codicil, of ... $230,000
By the second codicil (in September, 1853), he confirmed ' the devises in the first, and, in addition, gave to his wife, in personal property, at par value.......$349,460
And made four charitable gifts for..... 50,000
Making a total by that codicil .... $399,460
. By the third codicil (in June, 1854), he devised the whole residue of his estate to his wife, which residue, at the time of his death, was worth...........$221,454
This residuum is arrived at in the following manner:
At his death his whole estate was:
In hands of special administrator......$452,950
Invested in Mrs. P.’s name........619,964
Eeal estate, viz.:
In the will, after deducting Barclay-street property..........$163,000
In the first codicil ....... 230,000
-- 393,000
Total of his estate $1,465,914
Specific legacies were by the will $690,000
Deducting lapsed and revoked legacies . "...... 75,000
-615,000
By the first codicil ...... . 230,000
By the second codicil.......• 399,460
-:-$1,244,460
Leaving for the residuum $221,454
*53 Besides the increase in value of the property above its par (which was very considerable), and the chance of falling in of specific legacies which, under the twelfth clause of the will, did not vest in the legatees until they attained twenty-one years of age.
Thus, under the will—
The wife would have received.......$331,000
The specific legacies (deducting for those lapsed by death)..............424,000
The brothers would have got the residuum at. . 710,914
Making the total of........$1,465,914
Under the codicils—
The specific legacies would have been as above. $424,000
The specific legacies for charities ..... 50,000
The wife would have got the residuum at (besides the chances of increase before mentioned) . . 991,914
Making the total ........$1,465,914
In the latter event, the brothers would not have received any thing. But, in any event, the brothers’ children would have received $130,000 (deducting only lapsed legacies). And the sisters would have received only $40,000, and their children nothing, in any event.
CHANGES OF CONDITION.
1. About fourteen years elapsed between the making of his will and his death, and during seven years of that period he was speechless.
2. When, in September, 1842, he made his will, he made an inventory of his estate, and estimated its total value at $732,000. When he died in 1856, his estate had increased, as before mentioned, to the sum of $1,465,914, having in that time increased more than double.
3. His dwelling in Barclay-street, valued at $18,000, and his house in Chambers-street, valued at $5,000, had been sold, and his furniture, valued at $10,000, had been mostly sold.
*54 4. He had bought other real estate, viz., his dwelling on Hnion Square, at a cost of $111,260; a building on Wall-street, at a cost of $76,000; and had furnished his house at a cost of $50,000.
5. He had originally 117 shares of Manhattan Gas Co. stock, at the par value of $50 a share (and worth $60), $5,850. When he died, he had 468 shares at par value, $23,400.
• 6. He had improved his real estate in Hew Orleans, thus: House and lot on Camp-street, valued, when he made his will, at $3,000; was built on, at an expense of $6,985 42; in 1845 was valued at $9,000. And the two lots on St. Joseph-street, valued at, when he made his will, $3,000; were built on, at an expense of $10,786 50; in 1845, valued at $17,000.
7. In September, 1842, he had, in bonds and mortgages, $13,000. In 1856, he had thus invested, $220,450. Of the mortgages on hand in 1842, none were in existence in 1856, and only $3,021 in 1848. Of those on hand in 1856, none were held by him in 1842.
8. In 1842, his interest in firms was $472,379. In 1856, $6,000.
9. New Orleans property. He sold one of the three lots on St. Joseph-street. On the other lots a fire occurred, two or three years prior to his death, which destroyed $30,000 of their value, but which he received in insurance, thus converting into personalty, and spending that which was specifically devised as realty.
10. Gifts. He gave away — taking thus from under the operation of his will, and virtually revoking it pro tcmto— $9,978 51; which is exclusive of gifts to devisees under his will, $91,731 37. And, in addition, is the gift to Mrs. Parish of the stocks and securities invested in her name, $369,212 35. Making a total of gifts, $470,923 23. Whether such gifts be valid or not, they show an intention by testator to take that amount away from the will, and an intention to dispose of it otherwise than by his will.
11. His father's estate. In the statement of 1842, there is *55 no mention "of his father’s estate. But it appears that in March, 1842, he received a legacy of $30,000 from that estate, and that seems to have been all he expected from that source. But from May, 1845, to March, 1851, he received in addition from that estate, $23,351 17. In the balance-sheet for 1849, he enters the receipts from his father’s estate at $47,048 77; after which, he received $5,830, or a total of $52,878 77, of which no mention is made in 1842,
12. Stocks cmdpublic bonds. The change of condition in these assets was as follows: The stock, &c., held in Septem-_ her, 1842, was $61,500; in March, 1856, $797,797. The amount held in September, 1842, which he did not hold, or was valueless when he died, was $32,420; or more than half the whole amount. The increase in the kind of stocks he then held, by rise in value, or further purchases, was $242,414; or four times as much as all he then held.
13. General change of property. Of all the specific property which the testator had in 1842, when he made his will, amounting in the aggregate to $732,879, he had when he died, in 1856, only $308,970; thus changing $423,909 of his original estate.
His real estate diminished in value to the amount of $38,000. He invested $210,000 in the purchase of real estate. And $30,000 of his real estate was destroyed by the fire in Hew Orleans; in which three items alone there was a change to the amount of $278,000.
In bonds and mortgages there was a change from $13,000 to $220,450.
In stocks, &c., there was a change from $61,500 to $797,797.
In his father’s estate there was a change from $30,000 to $52,878 77.
In his interest in the firms there was a change from $472,379 to $6,000.
By gifts he made a change to the amount of $470,923 23.
And the bulk of his estate changed from $732,100 to $1,465,914.
*56 14. The condition of his legatees chcmged. Mrs. Payne’s life-estate in the Ohambers-street property was revoked by his sale of the property; and her annuity, valued by him at $5,000, lapsed by her death. The following legatees died during the lifetime of the testator, to each of whom was devised $10,000 : Jane Ann, Elizabeth, Mary Louisa, Henrietta, daughters of James Parish; Mrs. Kernochan, Emma Delafield, William Delafield; thus lapsing legacies to the amount of $75,000. His brother Daniel had one child born after September, 1842, and his sister Martha had two children after that time, and only one before.
15. His relations with his famihj. The testator was on good terms with his two sisters, but not with his brothers; and the alienation between them occurred after his will was made in September, 1842, and continued until his death. He was on good terms with his wife and all her relations, especially her brothers and sisters, without an exception. His brother Daniel was a man of large wealth. And his brother James was worth over $50,000.
16. The testator never intended that his will should take effect, hut always intended to revoke it.
a. He made it originally to be temporary, on the eve of his departure for Europe, Sept. 26th, 1842.
h-. He executed it in duplicate, and took one copy with him in order to alter or revoke it, if he saw fit. And left a power of attorney to sell any and every thing.
c. Immediately on his return from abroad, he consulted his counsel about altering it, expressing his dissatisfaction with it, because of the changes which had occurred.
d. In August, 1849, his desire to alter his will was mentioned by Mrs. Parish, in his presence, to Mr. Lord, and again in presence of Fisher.
e. His repugnance to his will, and his desire to abrogate it was so strong, that when, during the long silence of seven years, he attempted to write, the only word he attempted to frame, besides his signature, was the word “ will.”
f. His attempting to write his name, was at the suggestion *57 of others; but his attempt to write “will,” was of his own accord, and was repeated by him on several occasions.
g. By vehement and repeated gesticulation, he signified his wish for the box in which the will was kept.
h. He always intended equality in the distribution of his estate, especially between the brothers and sisters.
i. Four times during his sickness,-when the several codicils were drawn and executed, he expressed a similar wish.
j. He expressed a wish to disturb the legacies to his brothers’ children.
17. The acts of the testad were in conformity with cm intention to abrogate his will.
a. He consulted counsel in 1844 about altering it, and had a copy made for that purpose. He also consulted counsel on that subject twice in 1849, once in 1853, and once in 1854.
b. He executed three codicils, which, with the alterations by death and change of property, left a very small part of the will to go into operation.
c. He placed a large amount of his property in the name of his wife, and invested her with the absolute control over it, with the intention of making her its owner.
d. He made large gifts, showing a clear intention that the will should not operate on the amount thus given away.
e. He placed $75,000 in the hands of his brother-in-law, with the intention of making that a gift to his sisters, or to that brother-in-law. He had, by his will, given $90,000 to his brothers-in-law on his wife’s side, and this was intended as a gift to the only brother-in-law he had on his side. That gift of $75,000 was never revoked by him. It was voluntarily surrendered by the brother-in-law, at the instigation of others, and not by the action of the testator.
f He sold, in 1847, the homestead and furniture, and the house in its vicinity, all of which he had specifically devised, and that being his voluntary act, it showed his intention to revoke jiro tcmto. And he made no attempt at compensation until rendered imbecile in 1849.
g. He disposed of every item of personal property that he *58 owned, when he made his will in 1842. And so far as any of that was specifically bequeathed, he revoked his will.
h. He not only sold his homestead and furniture, and neighboring property, valued at $33,000, but he marked on his books, in 1849 (seven years after making his will) a depreciation of $38,000 in his real estate, and he knew of the destruction of $30,000 in_his Hew Orleans property, without rebuilding, and thus virtually revoked his will as to $101,000.
i. He invested over $200,000 in the purchase of certain real estate, which, not being specifically devised, would go either to the heir-at-law or the residuary legatees, thus diverting the price of the homestead, &c., $33,000, and the loss on the Hew Orleans estate, $30,000, from the devisees of these items to some other beneficiary. All this was done before his sickness, and when he was fully competent to prevent this revocation, pro tanto, if he had desired it.
18. The testator had a general intent as to the corpus of his estate, in connection with his wife and his brothers and sisters / and a special intent as to the numerous other objects of his bounty.
The general intent must- always prevail over the special.
That general intent can be best carried into effect by a total revocation.
In that event the wife would have ~ of personal . $543,243
Her dower in the real estate, valued at $261,000, she being 58 years old, would be worth . . . 42,663
Making a total to widow......$585,906
The four brothers and sisters would have one-quarter of residuum, $881,004; thus producing a result manifestly nearer his general intention than the will or codicils, or either or all of them.
If the widow is right, the brothers will get nothing, instead of over $50,000, under the will, or over $400,000 in case of intestacy. If the brothers are right, the widow would get $298,500, instead of over $1,000,000, under the will and codicils, or over $500,000 in case of intestacy.
*59 POINTS OP LAW.
I. When the codicils were executed, the testator had not a full testamentary capacity, and was under undue influence, and those codicils are all void.
TT. The will made in September, 1842, fourteen years before his death, was revoked: 1. By his intention to revoke.
2. By his acts of revocation. 3, By the alteration of estate.
4. By the changes of the beneficiaries under it, and his relation to them.
ITT. The will being revoked and the codicils void, it is a case of intestacy, in whole or in part.
Fvrst. As TO TESTAMENTARY CAPACITY AND UNDUE INFLUENCE.
I. There is no foundation for any distinction in respect to the codicils.
1. The testator’s mind was more impaired at the execution of the first codicil than the others, and had not then recovered its health as much as it did afterwards.
2. The first codicil was as much, if not more, the result of suggestion from others than of his own volition.
II. Testamentary capacity consists of the power of thinking, and the power of uttering thought, and of the power to will, and to express and execute that will. If either of these elements are wanting, testamentary capacity is deficient.
III. It is doubtful if the testator had the necessary capacity to think and to will.
1. Hothing but great mental weakness would have deterred him from using the means of communicating thought by writing or letters, when he had the physical capacity to use either mode.
2. The mental weakness that could produce such a result, and keep the testator for seven years without communion with his fellow-man, cannot be measured, and it is, therefore, impossible to say that he had a sound and disposing mind.
3. The affirmative of proving that he had such sound and *60 disposing mind is with the proponents, and any rational doubt on that subject is enough to destroy a testamentary disposition. (2 Jarm. on Wills, 51; Marsh v. Tyrell, 2 Hagg., 122; Converse v. Converse , 21 Vermont, 168; Stewart v. Lispenard, 26 Wend., 255 ; Clark v. Fisher, 1 Paige, 171 ; Goble v. Grant, 2 Green Ch., 629.)
IY. But whatever may have been his mental capacity, it is a conceded fact that he had no power to utter a thought, or express a will, without the suggestion, or at the instigation of some other person.
Thus, if at any time after his attack of paralysis he had wanted to give any part of his estate to his sisters, it would have been impossible for him to do so, because their names were never mentioned to him, and he had no power of himself to mention them.
Y. It is also very clear that in the dispositions in his codicils, he was laboring under undue influence in whole or in part.
Many of the ideas in those codicils were suggested by others, and not by himself. He denied or assented to his gift of the Union Square and Wall-street property, according to the form in which the question was put to him.
YI. A will executed under such circumstances is not the free unbiassed action of a sound and disposing mind, which the law demands as a condition to its validity. (Davis v. Calvert, 5 Gill. & John., 269 ; Bleecker v. Lynch, 1 Bradf., 458, 471 , aff’d on appeal; Weir v. Fitzgerald, 2 Bradf., 42 ; 1 Jarm. on Wills, 30, 39, 41; Clark v. Fisher, 1 Paige, 171 ; S. C., 2 N. Y. [2 Comst.], 498; Crispell v. Dubois, 4 Barb., 393 ; Worthington on Wills, 28, 32; Ingram v. Hyatt, 1 Hagg., 384, 404.)
Second. The will made in 1842, fourteen years before BIS DEATH, WAS REVOKED.
I. Bevocavit vel non is a question of intention, and all facts showing the intention may be received in evidence. (Boudinot v. Bradford, 2 Yeates, 170 ; Jackson v. Holloway, 7 Johns., 394 .)
*61 1. From the execution of his will in September, 1842, until his sickness in July, 1849, a period of seven years, the testator’s capacity to revoke, both as to intention and the expression of that intention, is unquestioned.
2. From July, 1849, to his death in March, 1856, another period of seven years, he had the capacity to will a revocation, and to give utterance to that intention. It required less capacity of utterance to destroy the will alréady made, than to make a new one with all its complications of amounts, persons, and articles of property. His difficulty was in the capacity of utterance, not in that of willing.
3. Every expression of his, during those fourteen years, in reference to his will, was that of dissatisfaction with it, and consequent wish that it should not stand. He never was heard to “ express” himself content with it, though it was repeatedly the topic of thought and action with him.
4. In the execution of this purpose, he knew of, and acquiesced in, did, or suffered to be done, things which amounted to a revocation, which he knew must have that effect, and which effect he could have prevented in a great degree, if not entirely.
5. Those things were: Death of seven legatees, and the lapsing of legacies to the amount of $15,000; disposing of every article of personal property, amounting to $540,000; disposing of every article of personal property specifically bequeathed, amounting to $10,000; converting real estate, specifically devised, into personalty, to the amount of $53,000; converting personalty into real, to the amount of over $200,000, thus changing its descent from next of kin to heirs, and altering the widow’s share from an absolute ownership of one-half, to life-estate in one-third; more than doubling his whole estate, and thus, except as to a few specific legatees, entirely changing thé distribution of his estate; and executing the codicils.
H. Under these circumstances there was an actual revocation of the will, in whole or in all of it, except the specific legacies. Eevocation may be in whole or in part. (Beck v. *62 McGillis, 9 Barb., 35 ; Ward on Legacies, 261-276; Coates v. Hughes, 3 Binn, 498; Langdon v. Astor, 16 N. Y., 51 ; Harwood v. Goodright, 1 Cowper, 90.) A subsequent devise of an estate tail revokes, yro ¿trote, a prior devise of an estate in fee. (Clark v. Berkley, 1 Eq. Cas. Abr., 412; S. C., 2 Vern., 720.) So if one devise all, and after settle a part, the will is good for the remainder only. (Coke v. Bullock, Cro. Jac., 49; Roll. Abr., 616; Hartness v. Bailey, Prec. in Ch., 515; Tucker v. Thurston, 17 Ves., 130.) Mortgage in fee, after a devise, is a revocation pro tanto only. (Brydges v. Duchess of Chandos, 2 Ves., Jr., 417.) A settlement in performance of articles, the whole fee being conveyed, and some of the purposes being inconsistent with the will, the will was revoked as to the settled estates. If lands devised are conveyed for a partial purpose, as a mortgage, or for the payment'of debts, it is a revocation, pro tanto, of a prior devise. (S. C., in the House of Lords, 3 Ves., 685; Parsons v. Freeman, 1 Wilson, 308 ; 3 Atk., 741; Amb., 116.) If testator devised and then suffered a recovery, or conveyed and took back a new estate, it was a revocation pro tanto.
IH. Ever since the Statute of Frauds passed in the reign of Charles II., in 1641, and our Statute of Wills revised in 1813 (Roberts on Frauds, 467, 473 ; 1 Rev. L., 364, §§ 2,16), the rule as to revocation under such or similar circumstances has been, that it would be implied.
Copyhold estates are not within the statute. (Carey v. Asken, 2 Bro. C., 58; Rob. on Fr., 319, 322, 323; Burkitt v. Burkitt, 2 Vern., 498; Habergham v. Vincent, 2 Ves., Jr., 205.) Mor is a trust in copyhold lands within it. (Rob. on Fr., 322.) So in case of an agreement to charge lands for the benefit of certain persons to be named by a certain person in his will.. Such appointment is not within the statute, and may be made by a not duly attested will. (Rob. on Fr., 327, 332; Jones v. Clough, 2 Ves., 365.)
By a will duly executed, charging land generally with legacies, a testator enables himself to lay any number of additional legacies on the land by a subsequent testamentary dis *63 position unexecuted. (Rob. on Fr., 344; Masters v. Masters, 1 P. Wms., 423.)
In the case of a devise to pay debts, testator may contract enough to revoke every other devise or bequest. (Rob. on Fr., 345.) Lord Hardwicke, in Masters v. Masters, says the. Statute of Frauds does not affect the question as to legacies, because it did not prevent a man from creating by will a fluctuating charge.
An annuity was charged on all estate, real and personal, and by an unexecuted codicil, testator gave all the personal to another. The annuity was revoked as to the personal. (Buekeridge v. Ingram, 2 Ves., Jr., 652; approved in 8 Ves., 500.) And that, not because the thing given was destroyed, but the fund out of which it was given. So a devise to charitable uses was held not to be within the statute. (Griffith Flood's Case, Hob., 136; Collison's Case, Ib.) Terms of years will j»«ss by a will unattested, though they could not thus be created. (Rob. on Fr., 359; Whitechurch Case, 2 P. Wins., 236.) So as to fixtures, which can be removed and converted into personalty — e. g., steam-power in a factory. (Rob. on Fr., 365.) Or a devise of corn groiwing, is good by a will unattested. (Fisher v. Forbes, 2 Eq. Cas. Abr., 392.)- So a devise of a mortgage may be revoked by an unattested will, because it is regarded as personal. (Casborne v. Searfe, 1 Atk., 605.) If in an unexecuted will there is a legacy to the heir on condition that he do not dispute the will, it is enough to put the heir to his election. (Boughton v. Boughton, 2 Ves., 12.) A lease and release to the use of a marriage settlement is not within the statute, but is good as an implied revocation. (Goodtitle v . Otway, 2 H. Bl., 516.)
THE FOLLOWING ARE OASES OF DEPARTURE FROM A LITERAL READING OF THE STATUTE.
The Statute of Frauds, section 5, reguires a Will to be signed by the Testator. — Lemayne v. Stanley (3 Lev., 1), holds that if the will is in the testator’s writing, and his name is inserted, it is enough. Same point in case of agreements. *64 (Stokes v. Moore, Doug., 241.) Sealing a will is a signing within the statute. (Warnford v. Warnford, 2 Str., 764.) Making a mark is a signing. (Harrison v. Harrison , 8 Ves., 185.) “The statute is satisfied by any symbol of consent and ratification.” An acknowledgment by testator will do. (Rob. on Fr., 461.)
The republication of wills of personal estate is not affected by the Statute of Frauds. (Abney v. Miller, 2 Atk., 599.)
The Subscription of the Witnesses is to be in the presence of the Testator. — It has been held that it was enough if the testator might see; it was not necessary he should. (See Shires v. Glascock, 2 Salk., 688.) As when the testator signed in her carriage, and the witnesses went back into the office and signed their attestation. (Casson v. Dade, 1 Bro. C. C., 99.)
He must not only be corporally present, but there must be a mental knowledge of the fact. (Right v. Price, Doug., 241.)
The testator,became insensible after executing the will, but before the witnesses could sign the attestation, which, however, they did do then and there, and he was alive and in the same room with them.
The 5th Section requires Credible Witnesses. — Who are “ credible?” The courts have construed the word, and converted it into “ competent.” At first it was held to be determined by the nature of the punishment, as sitting in the pillory. (Co. Litt., 6, b.) Afterwards by the nature of the crime. (Pendock v. Mackinder, Willes, 665; Windham v. Chetwynd, 1 Bur., 414 ; Hindon v. Kersey, 4 Burn. Ecc. L., 97.) The result was, “ credible” means “ competent.”
The Qth Section makes a Cancelling of the Will a Revocation. — Yet it is well settled that that depends on the intention, and something more is necessary than a mere literal compliance. In Onions v. Tyver (1 P. Wms., 343), Lord Cowper held that when a man made a second will devising the same property and cancelled his first, the cancelling amounted to nothing, because he did not intend to revoke his first will unless he could make his second effectual.
The 22 d Section declares that Wills of Personal Property *65 must be in writing. — It has been held that it is enough if written by the testator, though not signed. (Rob. on Fr., 448.) If signed, but not written by him. {lb.) If written by another, though not signed by him. {lb.) Then as to the form of the writing, — a memorandum or scrap of paper showing a testamentary disposition, is enough. (Downing v. Townsend, Amb., 280.) So of a letter giving an account how testatrix wanted to dispose of her property. (Rob. on Fr., 451.) So a formal will drawn and declared by her right, but not signed, {lb.) So where testator died before blanks could be filled in a will drawn to suit. (Id., 452.)
1. An intention to revoke, though not always essential t© a revocation, yet is an important element, not only in characterizing acts proved, but in determining the question of rerooemit vel non.
a. Our statute has recognized this, in rejecting paroi evidence of such intention. (2 Dev. Stat., 64.)
b. But the effect of intention, when properly proved, is well recognized. (Brush v. Wilkins, 4 Johns. Ch., 517 ; Johnston v. Johnston, 4 Phill., 447 ; Marston v. Roe, 8 A. & E., 14; Walton v. Walton, 7 Johns. Ch., 258 .)
2. The alteration of circumstances connected with the testator and his personal relatives, or those who would naturally be the objects of his bounty, is often enough to work a revocation. Thus, in marriage and birth of children. (Marston v. Roe, 8 A. & E., 14; Parsons v. Lanoe, 1 Ves., 191; Gibbons v. Caunt, 4 Id., 848; 3 Ph. Ev., by Edwards, 608; Israell v. Rodon, 2 Moore P. C., 51; Overbury v. Overbury, 2 Show, 242; Doe v. Lancashire, 5 T. R., 49.)
In a case of subsequent marriage and birth of child. (Gibbons v. Caunt, 4 Ves., 848.) The same ruling was extended to the case of a will before marriage, and then death, followed by birth of a posthumous child. (Doe v. Lancashire, 5 T. R., 49.) It was extended to the case of a widower, who married and had issue, though his will was in favor of the ■ issue by the first marriage. (Hollway v. Clarke, 1 Phill., 339 .) *66 Such a change is not merely presumptive evidence of an intention, but is an absolute revocation, on the ground of a tacit condition. (Israell v. Rodon, 2 Moore P. C., 51.) That such revocations are not excluded by the Statute of Frauds, has been considered as settled. ever since the case of Christopher v. Christopher, in the Exchequer, in 1771, and revocations are necessarily implied or presumed from so material a change in circumstances as marriage and birth of a child. (Kneebel v. Scrafton, 2 East, 530.)
A will by a father, on the assumption of his son’s death, and of a wife, on the assumption of her husband’s death, revoked by their being alive. (1 Lee, 120; 5 E. E. R., 325; Ward on Legacies, 261-276; Campbell v. French, 13 Ves., 321.)
An advancement is a revocation. |(Lovelass on Wills, 367, 371; Worthington on Wills, 86; Story Eq. Jur., §§ 1111,1112; 2 Williams on Ex'rs, 946.)
3. The alteration of estate is often enough to work a revocation. (Lu gg v. Lugg, Salk., 592; Christopher v. Christopher, Dickins, 445; S. C., 4 Burr., 2171, note; Id., 2182; Brady v. Cubit, Doug., 30; Bullin v. Fletcher, 1 Keen, 377; S. C. on appeal, 2 My. & Cr., 438; Ward v. Moore, 4 Mad., 368; Adams v. Winne, 7 Paige, 97 ; Cave v. Holford, 3 Ves., 650 ; S. C., 7 T. R., 399; 1 B. & P., 576; Walton v. Walton, 7 Johns. Ch., 258 ; Toller on Executors, 19, 22; Clapper v. House, 6 Paige, 149 ; Sparrow v. Hardcastle, 3 Atk., 798.)
A. devises a mortgage and forecloses, or takes a release of the equity of redemption; it is a revocation as if he can-celled the mortgage and took an absolute deed, for it was an alteration of interest and a new purchase. (Ballard v. Carter, 5 Pick., 112 .)
A man in his will manumitted his slave, and afterwards sold her ; held to be a revocation. (Matter of Nan Mickel, 14 Johns., 324 .)
If a father gives a daughter a ptirtion by will, and after-wards gives to the same daughter a portion in marriage. This by the laws of all other nations, as well as of England, is a revocation of the portion giverf by the will. (Hartop v. *67 Whitmore, 1 P. Wms., 182.) In this case Lord Hardwicke says: As to the objection of his having lived so long after giving the portion to his child (four years) on her marriage without ever revoking that part of the will, there could be no need for the father to revoke that legacy which he before had done by giving the portion in his lifetime, since that would be but revoking the same will twice.
Wherever an estate is modified in a manner different from that in which it stood at the time of making the will, it is a revocation. (Livingston v. Livingston, 3 Johns. Ch., 156 ; Parsons v. Freeman , 3 Atk., 748; S. C., 1 Wils., 308.)
Lord Hardwicke rules: It is admitted on all hands that if testator, having a legal estate, devises it and suffers a recovery, it is a revocation ; or if he devises and then conveys, though he takes back a new estate, if he levies a fine to his own use in fee, it is a revocation." (Amb., 116. See Parker v. Biscoe, 3 Moore, 24.)
Oh. J. Traver held that the least alteration of interest worked a revocation. (Arthur v. Breckenham, Fitzgib., 240.)
Testator after a devise conveyed the estate and took back a declaration of trust, which was performed and ceased, so that he was entitled to a reconveyance; still it was a revocation, because the estate did not continue in the same condition. (Sparrow v. Hardcastle, 7 T. R., 416, n.; 3 Atk., 798. See Swift v. Roberts, Amb., 618.)
The whole subject was fully discussed several times and settled, that where a testator, after a will, conveyed to trustees in trust for himself in fee till marriage, and in default of issue, to use of self in fee, and he married and died without issue, it was a revocation, because of the alteration in estate. (Cave v. Holford, 3 Ves., 650; 7 T. R., 399 ; 1 Bos. & Pul., 576.)
" Bennett v. Tankerville (19 Ves., 170); Knollys v. Alcook, (5 Ves., 654); Williams v. Owens (2 Ves., Jr., 601); Cotter v. Layer (2 P. Wms., 622); and Mayor v. Garland (Dickins, 563), are all to the point that an executory contract to sell land devised, is a revocation of the devise.
*68 Chancellor Kent says, in Walton v. Walton ( 7 Johns. Ch., 258 ): either a change of the estate, or an act, though nugatory in itself, evincing an intention to revoke, will amount to a revocation. So where testator sold the devised estate and took a mortgage back, all was revoked, because it was a change from realty to personalty. (Adams v. Winne, 7 Paige, 97 .) It was held in Beek v. McGillis ( 9 Barb., 35 ): 1. That a sale of devised property, though a mortgage back, was a revocation. 2. And so of a devise of a mortgage, a foreclosure, and a new mortgage taken.
A bequest of a lease and furniture of a house was revoked, by the expiration of the lease, a sale of part of the furniture, and removal of the residue to another house. (Colecton v. Garth, 6 Simons, 19.) As to revocation by sale or disposition, see Francis v. Collier (4 Russ., 331); Bullin v. Fletcher (2 Myl. &. Cr., 439); and Lock v. Foot (5 Sim., 618). Where lands contracted for are devised, if the subsequent conveyance is so framed that the legal estate is modified from the equitable possessed at the time of the devise, it is a revocation. (B ullin v. Fletcher, 1 Keen, 377.) The effect of the alteration of the estate is wholly independent of intention, and sometimes violates the intention clearly indicated. (See Rawlins v. Burgis, 2 V. & B., 386; 2 My. & Cr., 438.)
It has been urged that the rules and distinctions acted upon in these cases have been disapproved by eminent persons. As an argument of this nature may make the judge more cautious in concluding that a rule which he supposes to be applicable to a ease really is so, there is no impropriety in it; but whether the authorities relating to revocation be open to great objection, and whether it is or not a subject of regret that they should have been applied to cases of this nature, would not afford ground to deviate from decisions which have been acquiesced in, and have for many years furnished a rule for determining the rights to property. It is the duty of a judge to administer the law according to the evidences of it which are to be found in the authorities and in the recognized practice of the profession. The inquiry *69 before him is not what the law ought to be, but what it is and how it ought to be applied to the particular cases under consideration.
It may be lamented that the law upon any subject is in such a state as to induce eminent judges and writers to express them disapprobation of it, and their regret that they are bound to give it effect, but it would be still more to be lamented if judges should be found who thought themselves at liberty to declare the law according to their own fancies of what it ought to be. All stability would be lost, and the law which should be administered on clear and fixed principles would be involved in uncertainty and confusion.
A devise of two lots by one who was under-lessee of them, is adeemed by his afterwards taking an assignment of the leases. (Porter v. Smith, 16 Sim., 251.) Two cheeks given in September, 1833, and a will dated November, 1834, together admitted to probate as a will; y.et the latter held a revocation of the checks. ( Walsh v. Hadstone, 13 Sim., 261.) Testator devised £10,000 to M., and afterwards transferred £12,000 consols to joint names of testator and M. Held, an ademption. (Twining v. Powell, 2 Collyer, 262.) In Vawzer v. Jeffry (3 Russ., 479), the lord chancellor said, upon the authority of several cases (Ryder v. Wager, 2 P. Wms., 328; Cotter v. Layer, 2 Wms., 122; Knollys v. Alcock, 5 Ves., 648), that an agreement to convey, constitutes a revocation. In Bullin v. Fletcher (2 Myl. & Cr., 438), the lord chancellor said: In Parsons v. Freeman (3 Atk., 471), Lord Hardwicke establishes the principle, that whenever the estate is modified in a manner 'different from that in which it stood at the time of making the will, there is a revocation. A subséquent conveyance which made an alteration in the quality of the estate is a revocation. ( Ward v. Moore, 4 Mad., 368.) Though a trust to pay debts is no revocation, yet where in the deed there is a provision that after paying debts, the trustee should pay to such persons as the testator should appoint,- and in default of an appointment to himself in fee, that is a revocation. (Kenyon v. Sutton, cited in 2 Ves., Jr., 600.)
*70 So a conveyance to pay debts with surplus to the wife, is a revocation. (Hodges v. Green, 4 Russ., 28.) Testator made a contract for the sale of land, devised in his will, under which the purchaser took possession and paid part of the purchase-money, then becoming bankrupt, the property was sold in satisfaction of the testator’s lien for the unpaid purchase-money and bought in by the testator, — the property not being reconveyed to him, but released to him by the bankrupt’s assignees. The testator died seized, and the court held the will was revoked as to that land, and that such revocation was not done away with by the subsequent regaining of the land. (Andrew v. Andrew, 39 Eng. L. & E., 158.)
If the legal estate which the testator acquires by the conveyance, differs in quality from the equitable estate, which he had at the date of the will, the conveyance revokes the devise. (Plowden v. Hyde, 9 Eng. L. & E., 243.) And so in the case of a contract for purchase, if the legal estate which the testator acquires by the conveyance differs from that which by the terms of the contract the vendor agreed to convey to him, the conveyance revokes the devise. And this revocation equally takes place even though the testator after the conveyance has as absolute a power of disposing of the property as he had before. And the revocation takes place without regard to the testator’s intention, and even in direct contravention of his intention. S. 0. affirmed on appeal (13 Eng. L. & E., 180), where this was ruled: If a person seized in fee made his will, devising land, and afterwards conveyed the legal estate so as to take it back to himself not in fee, this is a revocation (see, also, Schroder v. Schroder, 31 Eng. L. & E., 197; Francis v. Collier, 4 Russ., 331; Lock v. Foote, 5 Sim., 518); all cases of change of interest in the estate working a revocation.
A mortgage was devised, paid, and the amount reinvested, ■ — held to be a revocation. (Gardner v. Hatton, 6 Sim., 93.) A devise of all testator’s property in the funds which he sold and invested on mortgage, was revoked thereby. (Hayes v. Hayes, 1 Keen, 97.) A renewal of a lease was a revocation *71 of a bequest of it. (Marwood v. Turner, 3 P. Wms., 163; Coffin v. Fernyough, 2 Bro. C. C., 291.) A revocation of the appointment as an executor, is a revocation of a legacy to him. (Roach v. Haynes, 8 Ves., 593. See Abbott v. Massie, 3 Id., 148; Harrison v. Rowley, 4 Id., 212; Mascal v. Mascal, 1 Id., 323; Ward v. Moore, 4 Madd., 368; Toll. Ex'rs, 22.) An ineffectual attempt to grant or devise property already devised by will, will amount to a revocation, and so the codicils of the testator in this case, though void as a testamentary disposition, are yet good as a revocation. (Exp. Ilchester, 7 Ves., 372; Montague v. Jeffreys, Moor, 4, 291; 1 Roll. Abr., 615; Beard v. Beard, 3 Atk., 72; Harwood v. Oglander, 6 Ves., 215 ; Darley v. Darley, 3 Wils., 6.) The testator suffered a recovery which was absurd, and useless, and utterly bad, and without any reasonable meaning to be deduced from it, yet it was a revocation. (Dister v. Dister, 3 Lev., 108.) A devise to a person incapable of taking, is a revocation. (Roper v. Radcliff, 10 Mod., 230.) The principle is stated that an act nugatory in itself, is yet good as a revoca-' tian. (Walton v. Walton, 7 Johns. Ch., 258 .)
If an incomplete testamentary disposition shows an intention to revoke, it is good as such. (Kidd v. North, 2 Phillips, 91 ; citing Jackson v. Jackson, 2 Cox, 35; Atty.-Gen. v. Harley, 4 Madd., 263; Heming v. Clutterbuck, 1 Bligh, N. S., 479 ; Fraser v. Byng, 1 Russ, & Myl., 90.)
Where testator intends a complete conveyance, and dies before it is perfected, as feoffment sans livery, it is a good revocation. (Clymer v. Littler, 1 W. Bl., 349.) A deed intended to operate as an assignment of uses, but not sufficient for that purpose, is ■ good as a revocation. (Shove v. Pincke, 5 T. R., 124; citing 2 Salk., 292 ; 1 Roll. Abr., 615, pl. 30; Wentworth Off. Exs., 22.) If the instrument be complete, but inoperative from the incapacity of the taker, it is a revocation, because the act was enough to alter the testator’s intent. (Beard v. Beard, 3 Atk., 72; S. P., Roper v. Constarbles, 2 Eq. Ca. Abr., 359, p. 9.)
A second will signed, but not attested, is good as a revoca *72 tian, though futile as a disposition. (Onions v. Tyrer, 1 P. Wms., 343; Pre. in Ch., 459.)
The foregoing cases show that hy the law, as well settled at the time of the enactment of the Revised Statutes, this will, or at least the residuary clause of it, was revoked by the intention of the testator; by a change of parties; by • an alteration of the estate; and by the attempt to change the disposition by means of the codicils, gifts, and otherwise.
IV". The Revised Statutes have not changed the law in this ' respect, nor intended to change it.
1. The revisors’ notes are not evidence of the meaning of the statute. (Sedqw. on Stat., 430; Forrest v. Forrest, 10 Barb., 46 .)
a. The law prior to the Revised Statutes being well settled by adjudications, a change of phraseology is not a change of the law, unless such change of phraseology evidently purports an intention to work a change. (Sedgwick on Stat., 428; In re Yates, 4 Johns., 359 ; Taylor v. Delaney, 2 Cai. Cas., 243 ; Elwood v. Klock, 13 Barb., 55 .)
b. The intention of the Legislature to alter the law must be evident, or the language of the new act mbst be such as palpably to require a different construction, before the courts will hold the law changed upon such revision, merely from the fact of a change of language. (Croswell v. Crane, 7 Barb., 195 ; Gaffney v. Colvill, 6 Hill, 574 ; Theriat v. Hart, 2 Id., 280; In re Brown, 21 Wend., 316, 319 .)
c. The section of the Revised Statutes (2 Rev. Stat., 64, § 42) is merely a revision of the Revised Laws, and is so declared by the revisors (3 Rev. Stat., 3 ed., 631), and, therefore, is not to be regarded as any alteration of the law.
d. Besides, the Legislature not having adopted the plan of the revisors, but having omitted some of their plan, and added some parts to it, cannot be regarded as adopting their notions in full. See section 44 (2 Rev. Stat., 64), which the Legislature altered, though it was recommended purposely to cover the whole ground, and was altered so as not to do so.
*73 2. The Legislature cannot he regarded as having intended to include all cases of implied revocations, because it was not possible for the Legislature by any statute to put an end to them. Thus, if A. devises a farm, then sells it and spends the price; or, if B. makes a bequest of a watch, and sells it or loses it, or of a horse or an ox, and it dies, or is killed before testator dies; or of a dwelling-house or furniture; and they are destroyed by fire; or of a ship and cargo, and they are totally lost at sea; in all these, and in various kindred cases, there is an implied revocation which no statute can prevent, and which it is at once apparent was not met nor intended to be met by the statute.
3. There is, therefore, a class of cases where, from sheer necessity, there must be an implied revocation, even beyond what the statute has provided for, and it is wrong to say that there can be no revocation of any will unless it is particularly mentioned in the statute. The statute reaches a certain class, and regulates them, and those not within that class are not reached by the statute.
4. It was so with the English Statute of Frauds: sections 6 and 22 of which were as follows: Sect. 6. “ Ko devise in writing, of lands, &c., or any clause thereof, shall at anytime after, &c., be revocable otherwise than by some other will or codicil in writing, or other writing, declaring the same, or by burning, &c.” Sect. 22. “Kc will in writing, concerning any goods, or chattels, or personal estate, shall be repealed, nor shall any clause, devise, or.bequest therein, be altered or changed by any words, or will, by word of "'mouth only, except the same be in the lifetime of the testator committed to writing.” (Act of 29 Car. II., ch. 3, §§ 6, 22; Rob. on Fr., 467; this act was passed in 1641.)
5. At first, and for about forty years, that act was read just as strictly and literally as it is contended we must read our Bevised Statutes. But the cases of implied revocations by necessity arose, and the English courts yielded to such necessity. The following cases will trace their decisions down from 1682 to the present time, and beyond the English Stat *74 ute of Wills adopted in 1838, and based on our Revised Statutes:
In 1682, Overbury v. Overbury (2 Show, 242). In 1689, Sugg v. Sugg (Salk., 592). In 1748, Parsons v. Lanoe (1 Ves., 189). In 1771, Christopher v. Christopher (Dickins, 445; S. C., 4 Burr., 2171, n.; 2182, n.) In 1778, Brady v. Cubitt (Doug., 30). In 1793, Doe v. Lancashire (5 T. R., 49). In 1836, Bullin v. Fletcher (1 Keen, 377; S. C. in appeal, 2 My. & Cr., 432). In 1838, Marston v. Roe (8 A. & E., 14). In 1852, Plowden v. Hyde (9 Eng. L. & Eq., 243; S. C., 13 Id., 175). In 1856, Andrew v. Andrew (39 Id., 158).
6. The enactments contained in these two sections of the English Statute of Frauds, were incorporated into the revisions of our statutes, in 1801, 1813, and 1830. (1 Rev. L. of 1801, 178, §§ 3, 16; 1 Rev. L. of 1813, 365, § 3; 367, § 16; 2 Rev. Slat., 64, § 42.) And the current of English decisions was Received by us, and incorporated into our jurisprudence. (1 Jarm. on Wills, Perkins ed., 152; 4 Kent Com., 521; Brush v. Wilkins, 4 Johns. Ch., 506 ; Walton v. Walton , 7 Id., 258 ; Adams v. Winne, 7 Paige, 97 ; Beck v. McGillis, 9 Barb., 35 .) And the same rule has been adopted in others of the States of the Union, where these enactments of the Statute of Frauds were in force. (Semmes v. Semmes, 7 Har. & Johns., 388; Burns v. Burns, 4 Serj. & Raw., 295; Havard v. Davis, 2 Binn., 406 ; Boudinot v. Bradford, 2 Yeates, 170 ; Bates v. Holman, 3 Hen. da Munf., 502; Witter v. Mott, 2 Conn., 67 .)
• 7. The rule, then, existing both in England and in this country, notwithstanding the Statute of Frauds, declares that a will, under the circumstances which attend this of Henry Parish, is revoked. (Johnston v. Johnston, 1 Phill., 447 ; Brush v. Wilkins, 4 Johns. Ch., 506 ; Sherry v. Lozier, 1 Bradf, 437; 4 Kent Com., 528; 3 Ph. Ev., by Edwards, 608; Langdon v. Astor, 16 N. Y., 51 ; Betts v. Jackson, 6 Wend., 173 .)
*75 Wtt.taam M. Evabts, on behalf of the Proponents;
Put in the following brief in reply to some questions of law discussed in the contestants’ argument. .
I. The statutes of this State express the rule in respect to testamentary capacity, by which the question must be determined whether any particular person has or has not power to make a will. (2 Rev. Stat., 56, § 1; Id., 60, § 21.)
The latter section was reported by the revisors to the Legislature, with fourteen years as the age of competency for males, and twelve for females, and with a suggestion that those ages were too young. It was in reply to this suggestion that the Legislature increased the ages, and inserted the words “ and no others,” to exclude the idea that younger persons might still make wills of personalty as at common law. (3 Rev. Stat., 2 ed., 629, rev. note.) That the whole section is thrown into the form of permitting certain persons to make wills, rather than that given to the provision in regard to devises of real estate, which excepts certain persons as incapable out of a general permission to all, is to be attributed to its greater simplicity of construction in the present form, and not to any difference of intent on the part of the Legislature. Under each section the intent is the same, viz., that all persons, not by law disabled, may make wills. The same exception occurs in the statute relating to the alienation of lands. (1 Rev. Stat., 719, § 10.)
Although under the two sections relating to real estate,. the persons incapable to alien or devise are designated as “ idiots, or persons of unsound mind,” and under the section as to wills of personalty, the persons incapable are those not “ of sound mind and memory,” yet there can be no doubt that this verbal difference in expression does not indicate any difference in the substance of the rule of exclusion. That no-ground can be conceived of on which to found a difference is apparent. General permission to alien property in life and at death is the purpose and policy of the Legislature; the *76 exceptions to the power are founded on the existence of a personal disability in the owner, and rightfully depend on the nature and extent of the ground of disability, and not on the kind of property. The use of the same terms in earlier statutes, shows that they are not different in meaning. Thus the exception in the old statute of wills, is of wills made by any “ idiot or person of insane memory.” (1 Rev. L., 365, § 5.) In the act concerning fines and recoveries, the parties to the fine are required to be “of sound memory,” and the fine is declared to bar all persons “ of sound memory” who do not sue in five years. (1 Rev. I., 358, § 1.) In sections 7 and 12 of the same act (pp. 361, 363), the rights of persons “ not of sound mind” are saved from the bar declared in the preceding section.
In the early English statute concerning fines (18 Edw. I.), all persons in the world “ de tone memorie” are declared barred, which words Coke translated “ of good memory” (1 Inst., 510), and employs as the contrary of “ non compos mentis.” (Id., 516, n. 18.) These words, ‘•‘•non compos men tis.” occur in the Statute of Westminster 2d, ch.48 (13 Edw. I.), and are translated by Coke “ not whole of mind.” (2 Inst., 480.) The same words are said by Littleton (section 405), to be of the same meaning as “ de non sane memorie,” and they are used interchangeably in the old pleadings as the different names of a certain and definite mental state known to the law, and affording the ground and criterion of legal action'. Thus, to refer to a single case only, in an action of trespass which turned on the validity of a deed executed by _ one whose capacity was disputed. The traverse alleged that the grantor was of good memory; without this, that he was out of his sound or sane memory, “ extra sa/nom memoriam suaml It was objected that the writ appropriate to the recovery of lands aliened by a person incapable to convey, 'used the term “ non compos mentis,” and that therefore the traverse should be taken in those words ; and further, that in the form proposed the traverse would include the deed of a sick or drunken man, whose deeds were good. It was answered, *77 that the sick or drunken man has “ his entire memory,” and the traverses was held well pleaded. (39 Hen. VI., 43, b.) The argument expressed a little more at large was this: “ non compos mentis” is the exact legal designation of the state which, if it exists, will avoid the deed, and should therefore be used; whereas “ extra sanam memoriam suam” describes a drunken or sick man, as well as one non compos. The decision, and the reason assigned, “ that the sick and drunken have their entire memory,” show that the words, “ out of sound memory,” were employed, not as descriptive terms, but as the name of a condition, and were equivalent in legal significance to “ non compos mentisand that being “ of good memory,” or “ of entire memory,” is equivalent to “ compos mentis.'1'1 Ho new meaning, therefore, has been imparted to the rule of law in respect to mental incapacity, by the use of the terms “ of sound mind and memory” in the statute regulating wills of personal property. They do not require the courts to enter into any metaphysics, as to the nature of mind or of memory, or of soundness or unsoundness, as if those words were words of mere description, nor to fix from such considerations a standard of capacity based upon the meaning of these separate terms. Their meaning, on the contrary, is to be ascertained by finding from legal decisions to what states of mind those terms have been appropriated as a name. That such a reference must be had, is apparent as soon as an attempt is made to define the term “ sound,” in its connection with mind or memory. We say even of men. of ability, that their minds are unsound when their own ingenuity persuades them of the truth of propositions which the common sense of mankind rejects, and yet we do not intend to impute to them, by the expression, legal unsoundness, which entails an incapacity to make deeds or wills.
Before entering directly on the inquiry to ascertain what is the mental state referred to in the statutes, of which incapacity is the legal consequence, it should be observed that a person who falls within the class of incapables can make no alienation of land, no will of real or of personal estate. *78 The incapacity is absolute. He can no more make a very simple will, than a very complex one. There are no grades of capacity declared. If capacity exists to make the simplest, conceivable disposition, the most complicated one cannot be rejected on the score of want of capacity. The rule of the statute is then to be applied to the owner of property, anterior to the consideration of any particular act of disposition. If found incapable according to the meaning of the statute, then the law denies to him the exercise, in these several forms of disposition, of that dominion over property which is fundamental in our notions of it. How, in our system of society and of law the present owner alone has any right or interest in property. He has the power to destroy it or to give it away unquestioned. Ho expectant heir can allege any interest in it, but is as much a stranger to that which he hopes to inherit as he is to that which he expects to earn or create. This exclusion of any right of interest in another is, of course, necessary to the existence of property in a complete and absolute sense. For just in so far as any other than the present owner should, by law, be given any right, interest, or authority, or should be considered in the framing of rules in respect to the disposition of property, so far would the present owner’s right and property be diminished and conferred upon that other. "We therefore confidently urge that, in the exposition of these statutory provisions they are not to be regarded as made in the interest of heirs or expectants of any sort: nor are they to be deemed a diminution of the present owner’s right of disposition. They are intended, on the contrary, to further and advance the general policy of our law on the subject of property, by insuring to the owner the complete power of disposition, to take effect either in his lifetime or at his death, and according to his mere pleasure. Whatever ceremonies are imposed as necessary to the legal validity of the act of disposition, are founded upon considerations either of affording and preserving proof of the act, or of protecting the owner against the fraudulent substitution of an instrument not in accordance with his purpose.
*79 II. The only rule of mental capacity in respect to feebleness of mind as distinguished from insanity, which will harmonize with this settled policy of the law as to the right of property, is that which leaves the power of disposition unrestrained if the owner have any mind. If he have any mind at all, the law should not pronounce him incapable of assent to any disposal of his property. Whether he has assented to any particular disposition is a different question from that of capacity. The authoritative decisions in this State have maintained the views which have been stated, with great distinctness and steadiness. In Jackson v. King ( 4 Cow., 207 ), a deed was questioned on the ground of the incapacity of the grantor. Woodworth, J., giving the opinion of the court on granting a new trial, says, “ It must be shown that the grantor was non compos within the legal acceptation of the term; that it was not a partial, but an entire loss of the understanding ; for the common law seems not to have drawn any discriminating line by which to determine how great must be the imbecility of mind to render a contract void, or how much intellect must remain to uphold it. But weakness of understanding is not of itself any objection, in law, to the validity of a contract. If a man be legally compos mentis, he is the disposer of his own property.” In Odell v. Buck ( 21 Wend., 142 ), which was also a question of the capacity of the grantor of a deed, Bronsoh, J., giving the opinion of the court, says: “ Buck, at the time the deed was executed, was not a lunatic, or one who had lost the use of that reason or understanding which he once had. He was not an idiot, or one that hath no understanding from his nativity. Although a man of imbecile mind, he had reason and understanding. Fraud was not set up as a ground of avoiding the .deed, but the ease turned wholly on' the incapacity of the grantor to contract. It is impossible to say that this deed was void. Ho part of the evidence goes far enough to show a total want of understanding.”
The opinion of Senator Yerplanck in Stewart v. Lispenard ( 26 Wend., 255 ), is especially deserving of notice, both for its *80 profound philosophy and its accurate appreciation of the authorities. The principles involved in the judgment as announced by him have been followed in the courts of this State, except in the Surrogate’s Court of New York, where the doctrine (if it can be called a, doctrine), that they only are competent to make wills, whose wills, when made, that court on the whole approves, would still seem to have some sway.
The cases of Blanchard v. Nestle ( 3 Den., 37 ), and Osterhout v. Shoemaker (Id., note), in the Supreme Court, show a free and clear approval and'adoption of the reasoning and principles of Senator Yerplanck’s opinion. In Newhouse v. Godwin ( 17 Barb., 246 , 257-8), Hr. Justice Strong, giving the opinion of the court, recognizes the rule as certainly established by the cases, that mere feebleness of intellect, however considerable in the tdstator, will not invalidate a will. The difficulty which Judge Strong felt and expressed, arose from, the seeming incongruity of calling a person whose intellect, from natural or acquired defects, was but the next degree above positive idiocy or lunacy, — a person of sound mind and memory, in the language of the statute. That incongruity would not have appeared to him to exist, if he had adverted to the fact that those terms were exactly equivalent in the law to “ compos mentis,” and embraced all persons not “ non compos mentís.” Judge Gridley, in Stanton v. Wetherwax ( 16 Barb., 261 -2), felt no such difficulty, recognizing at once both the equivalence of the terms “ not of sound mind and memory” and “ non compos mentís,” and also the accuracy of the designation of the general classes of “ non compotes,” as set forth by Lord Coke and adopted by Blackstone; according to which, besides idiots from birth and lunatics, those persons only are included who, by sickness, grief, or other accident, wholly lose their understanding. In the Court of Appeals, Clarke v. Sawyer (2 N. Y. [2 Comst.~], 498) is the only reported case in which this subject came under discussion, and, according to the report, a majority of the * court did not pass upon the question of mental capacity; but Shankland, J., who gave the opinion, recognizes the authority *81 ' and force of Stewart v. Lispenard and Blaneha/rd v. Nestle , as confining incapacity to the lunatic and the idiot.
This being the state of the authorities in New York upon this subject, it is not surprising to find the overthrow of the decision in Stewart v. Lispenard attempted by an array of cases from all quarters, which seemed to afford promise of assistance, as well as by an attack upon the accuracy of the opinion in that case, both in its statement and in its appreciation of the authorities on which it professed-to be based. In regard to the cases cited which have any claim to be regarded as authoritative in this State, it must for the present suffice to say, that they were before the Court of Errors when Stewart v. Lispenard was decided, and that so far as they differ in doctrine from that case, they have been overruled by it, and by those cases which have followed and approved it.
The first ground of the direct grounds of attack is, in substance, that the cases cited by Senator Verplanck in support of the standard of mental capacity maintained by him, relate mainly to the prerogative of the crown to take into its' custody the persons and estates of idiots and lunatics. That this prerogative, in its nature odious, was always strictly construed, and that the cases and opinions relating to it are not authoritative on the subject of testamentary capacity. Now, the prerogative in respect to idiots might be odious, inasmuch as the king took the profits of the estate of natural fools or idiots from birth, to his own use. But the other branch of the prerogative, which relates to other non compotes who were born of sound memory, and have become non compos, does not seem subject to the same odium, and consequent narrow construction; for the profits of their estates the king took not to his own use, but wholly to the use of the non compos and his family. (Beverly’s Case, 4 Coke, 126 b,127 b.) But one of the most direct and strongest authorities cited by Senator Verplanck, though it does not relate in terms to testamentary capacity, has not any relation to the subject of the prerogative. It is Coke’s commentary on sections 405 and 6 of Littleton, in the chapter on Descents, *82 the latter of which relates to the right of the heir to avoid a feoffment made hy his ancestor when non compos.
Lord Hardwicke’s observations in Barnsley's Case (3 Atk., 168,173) show that when the question was of exercising the prerogative for the custody of the persons and estates of those of unsound mind, the same standard of intellectual capacity was acted on as the courts of law applied, when for other purposes it became necessary for them to say what constituted unsound mind. He held, in substance, that there was no specially narrow and restricted sense in which the term non compos was applied in questions relating to prerogative proceedings. It is obvious that the inquiry to which Lord Hardwicke addressed himself, was, Who is non compos, within the Statute of Fines, whom a fine will not bar if he be not a party to it, and who may not be a party; who is non compos within the meaning of the Statute of Limitations against whom it shall not run; who is non compos, so that his heir shall have a writ to avoid his feoffment ? He had before him a return that Barnsley, from the weakness of his mind, was incapable of governing himself and his lands and tenements, and he recognized the possible usefulness of setting a curator or tutor over prodigal" and weak persons, as in the civil law; but finding that the courts of law had invariably regarded the words non compos as importing a total deprivation of sense, he did not feel at liberty to act on any finding which in substance came short of that. We say, then, that there is no ground of authority for saying that the law adopts any sense of the terms non compos mentis, in their application to persons idiotic, or of weak or imbecile mind, which does not import a complete deprivation of reason or sense.
Another, and the most elaborate occasion, of criticism on the case of Stewart v. Lispenard , seems to be the use, in the last clause of the reporter’s first head-note, of the words, <l if he.be not totally deprived of reason.” The line of critical observation is this: that the head-note is taken almost word for word from Shelf ord on Lunacy, with the exception that, instead of 'the words above cited, Shelford uses the words *83 “ if he be legally compos mentis." That the paragraph in Shelford is taken from a note by Powell, in his edition of Swinburne on Wills. That Powell’s authority for his note is Osmond v. Fitzroy (3 P. Wms., 129), in which Sir Joseph Jekyll, M. B., says, “ equity will not set aside the bond, only for the weakness of the obligor, if he be compos mentis; neither will this court measure the size of people’s understandings or capacities, there being no such thing as an equitable incapacity where there is a legal capacity.” That in this passage, Sir Joseph Jekyll does not define the standard of capacity at law or in equity, but simply affirms its identity, “ which no one disputesand that he does not say that there must be a total deprivation of reason to constitute incapacity ; and finally, that the words, “ if he be not wholly deprived of reason,” are to be found neither in Powell’s note nor Shelford’s text, nor in the case which Powell cites, nor even in Bath ds Montague’s Case, which the counsel cites, but that in each of those places the words are, “if he be legally compos mentis.’’ This is true to the letter. But in order that it should be effectual to diminish the force, as authority, of the case criticised, it was necessary to show that the reporter’s duty in some way required him to state, not the doctrine of the .case which he was reporting, but that of some other case which he was not reporting, but which had furnished some elements to the decision.
Senator Yerplanck in his opinion quotes Shelford’s language, “ if a man therefore be legally compos mentis,” and also quotes Lord Hardwicke’s language, that “ non compos' mentis” imports “ a total deprivation of reason” as contradistinguished from weakness of mind; and the judgment given proceeds upon the basis that Lord Hardwicke’s interpretation of those words, and his understanding of the rule of law, were correct. If Sir Joseph Jekyll differed from Lord Hardwicke on a question of law, looking to the mere authority of names, it would certainly be pardonable to follow the latter; but as Sir Joseph did not give his opinion, and Lord Hardwieke gave his, and the Court of Errors agreed with him in *84 opinion, it was surely not improper for the reporter of the decision to make the substitution of the one phrase for the other, and thus make his head-note distinctly enunciate exactly what the court had decided.
There is certainly no reason to suppose that Sir Joseph Jekyll or Chief-justice Holt used the terms “legally compos mentis” in any different sense than that which Lord Hard-' wieke said belonged to them: nor after the true sense of the terms had been once elucidated by so eminent a judge as Lord Hardwicke, are we to expect to find the same exposition often repeated in the books. It happens, however, to have occurred in Rochfort v. Lord Ely (Ridgeway’s Cases in Parliament, 532). Lord Chancellor Lifford says, “ There is no such thing as equitable insanity; it is a legal thing understood according to a legal definition. A deprivation of sense and a total want of understanding to contract; a deprivation of a man’s reason, as is said by Lord Hale. The genus of it has been described also by the' general words 1 non compos/’ weakness does not carry that idea with it. Courts of law understand it in the legal sense; the genus of it is expressed by the words non compos, or insanos mentis / and this agrees with the old idea in the books, that a man shall not stultify himself, and the reason given (though it does not hold now as it has been heretofore laid down), shows what the law considers as non compos. ..... The statutes of fines and limitations all adopt the words 6 non compos, non sanee men-pis’ as technical words, to express the deprivation of reason, agreeably to the wisdom of the law which aims at certainty. These words are legitimated, and they are now the only legitimate words to describe the incapacity.” At page 551, in a different proceeding between the same parties, Lord Chancellor Lifford says, further, “ The next point is, that he was an idiot or natural fool, and of unsound mind through a radical defect; or if not so, yet so defective through weakness of understanding, as to be incapable of doing any legal act to alter-the estate.” Having disposed of the question of idiocy and unsound mind, he proceeds to consider the ground *85 that he was so far of unsound mind as to be incapable of managing his affairs, and consequently of doing any legal act. He says, “ The true answer has been given, and, indeed, the candor of the plaintiffs’ counsel has admitted, that there is no such thing as equitable incapacity distinct from legal; were it otherwise, the greatest mischief would arise; there are no scales to weigh the human understanding; the wisdom of the law is human wisdom ripened by ages, and the law draws lines, which, though in a moral sense imperfect, as all human institutions are, yet they are better than none at all; infinitely better than if the judge was to determine in every case; were it so, the case would depend on the judge’s affections, his patience, his discretion, and nothing but confusion would arise in society. I, therefore, must speak to my own rule, of compos or non compos, as defined by Littleton; I must hold him capable.” In the same case (p. 527), Lord Chancellor Bowes says, “ The dominion over his o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5667565. Public record. Not legal advice.