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should be handed to the court, and not discussed work of Alexander W. Bradford, William Curtis in hearing of the jury. Tenth, that special verdicts Noyes and David Dudley Field, nor to talk about should be demanded as much as possible. These Mr. Field's “bantling." Better leave that to the are all good suggestions, but not particularly novel. veteran Mr. J. Bleecker Miller. It is not creditaIn fact we believe most of them were anticipated in ble in Mr. Moak to hint reflections at Mr. Field substance by the report to the American Bar Asso- | about injunctions and the like in litigations in ciation last year.
which those gentlemen were opposed to one another
as counsel, and in which, we believe, Mr. Moak's The Revue Internationale du Droit Maritime, edited party made freer use of injunctions than Mr. Field's by M. Autran at Marseilles, occupies a rather unique party. At all events, we hope Mr. Field will take place in law literature. It aims, and seems fairly no notice of a slur which never had any basis to succeed in giving the shipping law and adjudi- except in the heated imagination of legal oppo, cations with great promptness from almost all nents, which is unworthy of Mr. Moak, and which Europe and some other countries. Excellent sum- it is not worth Mr. Field's while to resent. As to Mr. maries of our own decisions translated and con- Moak's original criticisms, a dozen or so in number, densed from this journal, have been given. The two or three are perhaps well founded; several he adessays of Prof. Laurin, on liability of vessel in mits to be doubtful, and some are extremely base. charge of a pilot, and of M. Valroger, on general less. For example: “Section forty-five provides that average, and of M. de Courcy, on question of contri- each party must prove his own affirmative allegabution of freight in general average are specially tions.' Suppose a plaintiff fails to prove his, is the noteworthy. It would seem that any magazine, defendant, in order to succeed, obliged to prove his?" that could furnish the latest shipping law of France. Who but a man determined to find fault could ask Germany, England, Belgium, Netherland, Denmark, such a question as that? Again, the Code proItaly, and even Brazil, ought to be better known vides that evidence may be given of "an act or to the practitioner in the commercial courts of this declaration of another, in the presence and within country.
the observation of a party, and his conduct in rela
tion thereto." Mr. Moak says “ the conversation is The American Law Review does us the honor, in
not competent evidence against him,” if he is deaf, defending itself and us against the assaults of the
drunk, asleep, or does not understand the language. Columbia Law School boys, good naturedly to say: Our impression is that Mr. Moak is wrong; we “It is well known that our Albany contemporary is I think it may be given in evidence if in his edited by the Nestor of legal journalism — a gentle
presence, but of course those facts may be man who has sat upon the tripod from away back
shown to counteract its effect. But how can the in the palæozoic period of law periodicals.” We
matter be said to be within the “observation" of are well aware that we are getting on in years, but we
the party in such circumstances? When Mr. Moak believe we are more generally chargeable with the
| lays aside his microscope, he fares still worse. He atrashly reforming spirit of youth than with the staid
tributes the corruption and impeachment of judges conservatism of old age. After all, the ALBANY
to the Code of Procedure! Just as if that Code LAW JOURNAL, although venerable by comparison,
gave them any opportunity they would not have has not yet gained a prescriptive right to be. But
had under the old law. He thinks the Indian Code we are old enough to have learned that we do not
cannot be a great success, because of the revolt of the "know it all,” and to be willing to hear reason and
sepoys. He finds fault with the Code Napoleon betake counsel - even change our mind, sometimes.
cause Napoleon would not recognize his brother's There are no people so unwise as those who never
marriage with Miss Patterson. He says “the change their mind. We know we have a way of
have a way of French people have changed their government on expressing our opinions pretty strongly, but that
but that an average as often as every fifteen or twenty years springs out of the habit of advocacy, which we have since
nwe have since their glorious Code was adopted.” Mr. Moak not outgrown, and the zeal of reform, which was l ought to bear in mind that they have been advancborn in us and which we hope never to outgrow. Ling to republicanism and liberty. As to California
| he says: “Its people were composit, Spaniards, Mr. Field and Mr. Moak have been exchanging Mexicans, Greasers, Chinese, roughs, gamblers, and discourtesies about the Code of Evidence. The scoundrels from every part of the world, mixed with governor wanted to get a “perfectly unprejudiced” a sprinkling of intelligent and good men,” etc. opinion on its merits, and so he called in Mr. Moak Does this correctly describe the population which and he said, having " hastily read some fifty sec- adopted the Code ten or twelve years ago? We adtions” of it, that it hadn't any. Mr. Monk's opin. | vise Mr. Moak to keep away from San Francisco. ion was published in the Argus. This drew out Then comes one of his favorite arguments. Our Mr. Field in answer, and now Mr. Moak sends us a Court of Appeals has issued one hundred volumes. pamphlet containing the two papers and his own | The Supreme Court of California in the same period reply to Mr. Field. Mr. Moak, as is well known, has has issued sixty-five. Therefore “ California has had executed some creditable performances. This is not more litigation under the Code than New York has one of them. It is not creditable to sneer at the had without one." But California has had only
sixty-five volumes all told. How many has New | by will. The woman has the same authority to exeYork had? - Supreme Court, Superior Court, Com- cute the power of revocation and appointment when mon Pleas, and all the rest, leaving out the reports married as when sole. The nature and not the of practice - probably five hundred. Finally, Mr. form of the instrument determine whether, at com. Moak quotes from Mr. Justice Gray to prove the mon law or under statutes, it is a will of which "expansive character " of the common law. He marriage is a revocation. So are the authorities, need not have taken the trouble. Every one knows Hodsden v. Staple, 2 T. R. 684; Hodsder v. Lloyd, 2 it is "expansive" enough. Mr. Justice Gray “is a Bro. Ch. 534; Taylor v. Raines, 7 Mod. 147; Logan great and learned jurist,” but so is Mr. Justice Mil- v. Bell, 1 C. B. 872; McMahon v. Allen, 4 E. D. ler -- perhaps the ablest in this country, and he fa- | Smith, 519; Lant's Appeal, 95 Penn. St. 646; S. C., Fors codification. On the whole, we advise Brother 40 Am. Rep. 646, cited and quoted from. The Moak to call in his pamphlet. It will not please the will, so far as it is in execution of the power of apunprejudiced, and will make the New York city pointment contained in the agreement referred to, men jealous.
should be allowed, but there should be a qualified or limited allowance, as in Holman v. Perry, 4 Met.
492; and Heath v. Worthington, 6 Cush. 497." NOTES OF CASES.
IN Osgood v. Bliss, Massachusetts Supreme Court, In Fowler v. Callan, New York Court of Appeals, 1 April, 1886, H., an unmarried woman, executed it is held that an agreement by an attorney to take a will offered for probate. It disposed of her es- for his compensation for defending a client in a tate separately settled on her by ante-nuptial agree- | controversy involving title to certain lands, so ment of her husband, the settlement giving her full much of the value of one-half these lands, therepower of disposition, and providing that it should upon conveyed to him as might remain after the costs descend according to her will, and that the mar- and expenses had been paid, is valid. The court, riage should not revoke the will. The statute of Finch, J., said: “The agreement appears to have Indiana provides that subsequent marriage revokes | been purely one for compensation. If the client an unmarried woman's will. The court said: | had given to the attorney money instead of land "Whether a power of appointment in an ante- the contract would have differed in no respect, exnuptial contract can be executed before as well as cept the contingent character of the compensation. after the marriage depends upon the terms and con- The arrangement contemplated success in the litistruction of the agreement. In this case the power gation, in which event the land would pay the costs to appoint by will before the marriage is clearly and expenses and the attorney's reward, and both given; the provision that the marriage shall not would be discharged out of the property of the cliwork the revocation of the will executed prior to it ent placed in the hands of the attorney for that preshows that it was intended that the power might cise purpose. The contract in no respect induced be executed before the marriage. The question is the litigation. That was already begun and existed whether the execution of the power by an appoint- | independently of the agreement, and originated in ment by will before the marriage was revoked by the other causes. It did not tend to prolong the litigamarriage. The difference between a will and an ap- tion. It made it to the interest of the attorney to pointment by will in this case may seem very slight, close it as briefly and promptly as possible, and at but there is the material practical difference be- as little cost and expense as prudence would pertween the two that a married woman may make an mit. The plaintiff therefore stirred up no strife. appointment by will by the common law, but can-induced no litigation, but merely agreed to take for not make a will except as authorized by recent stat- his compensation so much of the value of the land utes. The theoretical distinction is that a will con- conveyed to him as might remain after, out of that cerns the estate of the testator, and an appointment value, the costs and expenses had been paid. We under a power that of the donor of the power. do not think the statute condemns such an agreeSuch a power can be given to be executed when ment. 3 R. S. (6th ed.), p. 449, $$ 59, 60; Code, 88 sole or married, and can be executed by a married | 73, 74. The Code revision changed somewhat the woman according to its terms, by deed, will, or language of the prohibition, but nevertheless must otherwise. There can be no reason for the distinc- / be deemed a substantial re-enactment of the earlier tion that the execution, when sole, of a power to sections, Browning v. Marvin, 100 N. Y. 148. They appoint by deed or will, when sole or married, if forbid, first, the purchase of obligations named by by will should be revoked, but if by deed should an attorney for the purpose, and with the intent of not be revoked, by marriage. The will operates in bringing a suit thereon; and second, any loan or the same manner as the deed does, as the execution advance, or agreement to loan or advance 'as an of a power, not as the disposition of the estate. | inducement to the placing, or in consideration of The reason given for holding that marriage is having placed in the hands of such attorney' any deemed to be a revocation of a woman's will — that demand for collection. The statute pre-supposes she thereby divests herself of the power of revok- the existence of some right of action, valueless uning it, and destroys the ambulatory character nec- less prosecuted to judgment, which the owner essary to a will - does not apply to an appointment might or might not prosecute on his own behalf, but which he is induced to place in the hands of a sounds or noises, either on account of any illness of particular attorney by reason of his agreement to any inmate of such house, or for any reasonable loan or advance money to the client. It contem cause. It appeared that there had been in that case plates a case in which the action might never have numerous complaints by the inhabitants, and the been brought but for the inducement of a loan or appellant had been requested by the superintendent advance offered by the attorney, and in which the of police to desist from playing, but refused to do latter by officious interference procures the suit to so. It seems to me that the by-law in that case was be brought, and obtains a retainer in it. The stat- a very reasonable by-law. This by-law makes playute speaks of a demand' which, by enforcement, ing a musical instrument an offense, whether it will end in a 'collection ;' phrases which have no causes a nuisance or annoys anybody or not." aptness to the situation of one simply defending a good title to land against the efforts of others seeking to destroy the devise under which he claims.
TESTAMENTARY CAPACITY. The plaintiff made no loan or advance' in any proper sense of those words. They imply a liabil- THAT a man may do with his own whatsoever he will, ity on the part of the clients to repay what was thus 1 provided it be not to the injury of the legal rights lent or advanced. The attorney loaned nothing, of another, is a principle of elementary law. and he advanced nothing to the client which the
That one may scatter his property broadcast over
the earth, to his kin or to strangers, to the deserving latter was bound to reimburse. Simply he was paid
or the undeserving, if he freely wills it, the law disin advance an agreed price, taken in land instead of tinctly affirms. The power of making such disposimoney, and out of which he was first to pay costs tion of one's goods, when analytically considered, will and expenses. The facts before us are not within | be found to be based upon the free exercise of the
will. the terms of the statute, as it respects a 'demand,'
Whenever by tha force of circumstances there is which is the subject of collection’; but our conclu
either a natural or a legal impediment to the free exsion rests more strongly upon the conviction that | ercise of the will, the right to make such disposition the agreement made was one for compensation is by law withheld. When therefore can one dispose merely, and had in it no vicious element of induc of his goods by way of a last will or testament? ing litigation, or holding out bribes for a retainer.”
The right to make a will is by law protected wben the testator is competent to exercise with freedom the faculty of will power-in other words, whenever he pos
sesses the capacity of freely doing or not doing whatIn Johnson v. Mayor of Croydon, 16 Q. B. Div.
ever is suggested to his mind. By legal presumption 708, a by-law made by the council of a borough infants do not possess such capacity, avd consequently provided that no person not being a member of their right to make a testamentary disposition of their Her Majesty's army or auxiliary forces, acting under
goods is not recognized. Infarcy is coasidered an imthe orders of his commanding officer, should sound
pediment to the free exercise of the will, and conse
quently infants are absolutely presumed to lack tesor play upon any musical instrument in any of the
tamentary capacity. As this impediment is in many streets in the borough on Sunday. Held, that such cases not real, but hypothetical, not fact, but preby-law was unreasonable and ultra vires, and there sumption, it is somewhat limited by the law in its apfore void. The court, Hawkins, J., said: “It does
plication. Infants, generally speaking, lack testamene not seem to me unreasonable to suppose that there
tary capacity, but a male infant of eighteen years or
over, or a female infant of sixteen years or over, while might be cases where the inhabitants of a street
in the eyes of the law possessing absolutely no testamight desire to have music of a sacred character mentary capacity to dispose of real property, is played on a Sunday, and where such music would deemed to possess sufficient testamentary capacity to not occasion any annoyance. This by-law however dispose of property not real-that is, such infant.is would include any sort of music played under any
| deemed competent to give away by a last will possibly
a million dollars in bonds or securities, and yet is incircumstances, and however harmless or free from
competent to similarly dispose of but one foot of real offense such music might be. It appears to me that
property. If the law be deemed a science, and its rules such a by-law is unreasonable. If the town council are to be considered as based upon principle, this distincdesire to have power to put a stop to music of such tion would seem absurd, especially as it requires no a character as may be offensive, or likely to occa
greater amount of free will and intelligence to dispose
of real than of personal property, and as it seems inconsion annoyance to the inhabitants, I think they
sistent to admit in the same person free will as to one might, probably, by means of an amended by-law thing and deny it as to another, when to the will coneffect their object, but it is not for us to suggest sidering them there is absolutely no difference behow such a by-law might be limited so as to be rea tween them as far as the mere exercise of intelligent sonable; all we have to do is to determine whether
polition is concerned.
Such however is the law on this point. Its reason is this by-law is reasonable. The case of Reg. v. Pono
to be found in the feudal origin of our jurisprudenco ell, 51 L. T. 92, was a very different case from the
which even to-day so dominates our legal system that present. There the by-law imposed a penalty on it requires two trials to finally eject a squatter from every person who should sound or play upon any one's land, and but one to deprive a man of his life. musical instrument in any street, or near any house
Infants excluded, everybody save “idiots,” and per
sons of "unsound mind" can make a valid will. Infancy within the borough, after having been required by
being considered to some extent a legal impediment, any householder resident in such street or town, or
idiocy and menial unsoundness may be viewed as any police constable to desist from making such natural disqualifications. The law presumes a man
innocent rather than guilty, and of sound rather than gation of the statute of descents, and outs off the uusound miud.
rights of tbe heirs at law, and “the heirs at law rest The ordivary man is compos mentis, and on him securely upon the statutes of descents and distribuwho asserts any one to be uulike his fellow, lies the tion until some legal act bas been done by which their burden of proving his assertion. Delafietd v. Parish, rights under the statutes have been lost or impaired." 25 N. Y.9, opinion by Gould, J., conourred in by a Therefore whoever offers a will for probate must majority of the court.
prove it to have been made by one of sound mind, as In a later case Church, C. J., remarks: "The pre
mental soundness is a sine qua non for the maker of sumption of sanity always exists-that being the nor an instrument divesting heirs at law of their rights. mal condition of man.” Banker v. Banker, 63 N. Y. Secoud, “wills are supposed to be made in extremis. 409.
In point of fact a large proportion of them are made In an early New York decision Van Ness, J.. says: when the mind is to some extent enfeebled by sickness "In all cases where the act of a party is sought to be or old age," therefore the sanity of the testator should avoided on the ground of his mental imbecility, the be proved, and not presumed. proof of the fact lies upon him who alleges it, and un The first argument of Thomas, J., is answered as til the contrary appears sanity is to be presumed. This follows by Gould, J., in Delafield v. Parish, ut supra: rule of law is recognized by all the elementary writers | “In this country, where individual rights know no reou the subject, and in all the adjudicated cases which straint which is uot imposed as necessary to the genI have met with, both in law and equity, the court in eral good, there is no policy in the law tending to pretheir reasoning and opinions seem to take it for vent a man's doing what he wills with his own. And granted." (Here follow numerous citations.) “But I the statute of wills enabling a man to direct how bis independently of authority, the law ought to be so. property shall go after his death is but supplementary Almost all mankind are possessed of at least a suffi-| to his absolute control over it during his life. We accient portion of reason to be able to manage the ordi- knowledge no right to it (as against his will) in any bary concerns of life. To say therefore that sanity is one, whether before or after his death. Our statuto not to be presumed until the contrary is disproved, is of descent takes effect only when the owner of real to say that insanity or falsity is the natural state of estate dies without devising it, and that of distributhe human mind." Jackson V. Vandusen, 5 Johns. | tious only when a person dies intestate."
Nemo est haeres viventis is an old maxim of the law, After a comprehensive examination of this question and it is equally true that there can be no heirs at law Judge Redfield says: “It must be admitted upon a unless a man dies intestate, consequently a man dying careful examination of all the cases that the burden | leaving a last will and testament leaves no heirs at of proof of insanity in the case of a will equally with law whose rights can be cut off by any thing or anythat of a deed or other contract is upon the party al body, they being entirely " in nubibus." leging it, and who claims the benefit of this fact when It seems that the first argument by Thomas, J., is established." 1 Redf. Wills, 32, $ 4.
unquestionably weak. The second is equally objecIt would seem that on a question of this nature there tionable. Old age does not necessarily destroy the should be hut oue opinion. That the natural would | mind, nor do the pangs of a last sickness. Literature, be also the legal presumption might be taken for history, every-day life, and even the law, bring overgranted without debate. Yet on this question there! whelming disproof of any such presumption. If it has been and still is a wide variance of opinion on the would be in violation of law and common sense to part of the courts of several jurisdictions.
presumo old men and the sick naturally incompetent, It has been contended by those learned courts that it is quite illogical to practically uphold such a prewhile in every other affair of life a mau should be pre- | sumption by demanding proof of the contrary. sumed to be sufficiently sane to make a contract, sign
Crowninshield v. Crowninshield was cited in the ara deed, or commit a crime, yet he must be proved gument in Barter v. Abbot, 7 Gray, 83, another Massacompetent to make a will. Why the presumption of chusetts case, and Thomas, J., who wrote the opinion capacity should not be applied to the act of making a in both cases, announced that the majority of the will as well as to the act of buying, selling or stealing, court, he dissenting however, hold that sanity is to be it is not very easy to see.
presumed, but yet the executor has the burden of In Delafield v. Parish. ut supra, Davies, J., in a proof-in other words, the executor must prove what Fery learned opinion, takes the opposite view, and is by law presumed. cites numerous English authorities to sustain the doc. 1 In behalf of this doctrine it has been contended that trine that sanity must be proved, not presumed.
the ordinary presumption of competency as to conThe opinion of Baron Parke in Barry v. Bullin, 1 tracts should not be applied as to wills, because Curt. 637, where he says: “In all cases the onus pro
“while society cannot get along without contracts, it bandi is imposed on the party propounding the will,'.
may easily dispense with wills,” and that in fact the is cited as the chief authority, accompanied by sev
law makes for a man a much better disposition of his bral later cases holding the same views. Lord Broug. property that he can make for himself by will. It is ham's decision in Panton v. Williams is also cited to also urged that the presumption of sanity is of no the same effect. In the opiniou of Van Ness, J., in practical value, as do surrogate would ever admit a Jackson v. Vandusen, ut supra, numerous English
will to probate without proof of the testator's compecases are cited holding opinions decidedly contrary to
tency. The first argument is of no weight unless it be those of Baron Parke, an examination and compari assumed that the policy of our law is to restriot indi. ion of which is most profitable to one desiring a com- 1 vidual liberties, and that the statute of descenta. plete acquaintance with the growth of the English law rather than the statute of wills, is the favorite of the on this question.
law. Such an assumption would be baseless; both The Massachusetts case, Crowninshield v. Crown in statutes stand on an equal plane, one to take effeot shield, 2 Gray 626 is cited by Davis. J.. ut supra, with only when the other does not. As to the latter arguspecial approval. In this case, Thomas, J., writing the | ment, the fact that surrogates require pro forma preopinion of the court, enters into a very elaborate and liminary evidence does not in the least affect the value able argument to show why sanity should be proved, of this presumption of sanity, which is taken into ac. not presumed. His conclusions are based upon two count when the evidence pro and con is considered. arguments: First, the right to make a will is a dero- | To-day, when there are to be found in every commu
nity men styling themselves "alienists" and "experts shown. “Idiocy" and "imbecility" will often be in mental diseases," ready to testify for a fee, and found used as convertible terms. They are so deemed always endeavoring to earn their compensation, gen by many medico-legal writers, while to others a wide erally expressing opinions of absolute incompetency distinction exists between them. Some define “idi. of a testator, it is quite necessary to have such a rule ocy" as a defect either “congenital” or “acquired.” of law requiring proof of alleged insanity.
while others call the “congenital” defect “idiocy," It must be said however that in England, Massachu. and the “acquired" defect “imbecility." This is setts, Maine and New Hampshire the rule in Crownin merely a question of medico-legal definition, and it is shield v. Crowninshield is the law.
quite clear that the legal term “ idiot"includes both Where the opposite rule holds, after pro forma evi. conditious. dence is given, the burden is on the contestants, and The next disqualification is where the testator is of to invalidate a last will the testator must be proved “unsound mind." to have been an “idiot” or of “unsound mind." Under this heading arise the multitude of will conWhat is an “idiot?”. Idiocy is not the result of men- tests, furnishing so much work for the surrogate and tal impairment. The mind of an idiot is not “a mind 80 much scandal for the public. At a first glance the diseased," but one which is radically incomplete. words, “of unsound mind" might seem to mean that Medico-legal writers define idiocy as “a congenital anyone whose mental faculties had in any way detecondition manifested by imperfect development of riorated or lost their former degree of relative perfecboth mind and body.” “The idiot is either non tion was disqualified from making a will. Such a view compos orbis capacity is below that of another person however is far from being correct. of his age. In some cases the intelligence is even upon A mind is said to be “unsound," when taken as a a par with that of some of the lower animals, and his whole, its operations betray unsoundness. An appamental expression is chiefly emotional. In completely ratus may be weakened in some of its parts, and yet idiotic persons there is no sign of recognition, no in perform with considerable accuracy the work for dication of memory, and the intellectual capacity is which it was constructed. So with the human mind, not to be compared to that of some of the intelligent and it is only wheu its operations, considered one with animals. There is the absence probably of a sufficient the other, are clearly abnormal, that the mind as a number of sensory cells and their connecting fila whole can be termed “unsound" in the sense of the meuts, and the result is the absence of mind." Ham. statute. As testamentary capacity is based upon the Med. Juris. 21.
free will of the testator, such mental peculiarities as Many idiots however have mental structures less im. destroy or hinder an intelligent, free exercise of the perfect, and possess in some faculties a partial bright will, destroy at the same time testamentary capacity. ness, and are capable of being taught to talk and read. Among the common forms of “unsound mind”
There can be however but little debate upon the which are alleged to invalidate a last will, “ Senile Dequestion of the idiocy of a particular person. Its evi mentia” is most frequently charged. Our profesdences are plainly visible to observation,and its physi sional and business men remain at their posts until an cal accompaniments render its detection a rather easy advanced age, and when they retire from aotive opmatter. In every text-book of medical jurisprudence erations their minds, losing their former stimulus, its symptoms are enumerated, and they are familiar to often sink into a state of extreme feebleness, and almost every medical practitioner. In the eyes of the sometimes they fall victims to “Senile Dementia.". law idiots are mere automata, being considered the This form of mental degeneration is the result of prey of a passing emotion, passion or impulse. They extreme old age, coupled with other and perbaps upcannot make a contract or commit a crime. This the known causes. It is not however the usual accompaniory of the law is based upon the bampered and clogged ment of old age. Some lose their natural powers exercise of what little freedom of will it is possible for sooner than others, and wbile with some the burden of one almost totally devoid of reason to possess. There years may weaken, cloud or undermine the mental being no freedom of will, there is consequently no tes. structure, yet with others there is no impairment of tamentary capacity.
the mind's grasp, and in some cases there seems to be In Stewart v. Lispenard, 26 Wend. 255, the question an increase in mental power. No presumption of of an idiot's capacity to make a will arose. The testa * senile dementia” is to arise because of the testator's tor in this case was most certainly either an idiot or senility. an “imbecile," which terms are by some held to be Iu Horn v. Pulman, 72 N. Y. 269, Andrews, J., says: synonymous. She had however some slight traces of “There is no presumption against a will made by a intellect. The surrogate in the first instance refused man of advanced age; nor can incapacity be inferred to admit her will to probate on the ground of her from an eufeebled condition of mind or body. Such a idiooy. The chancellor, on appeal, sustained the judg rule would be dangerous in the extreme, and the law ment of the court below, which was however reversed wisely sustains testamentary dispositions made by by the Court of Appeals, which handed down the fol persons of impaired mental and bodily powers, prolowing doctrine, viz., that if one be not totallg deprived vided the will is the free act of the testator, and he has of reason he can make a valid will.
sufficient intelligence to comprehend the condition of Blackstone's definition: “A man is not an idiot if he his property, and the scope, meaning and effect of the hath any glimmering of reason, softhat he can tell his provisions of the will." See also Children's Aid Soc. parents, his age, or the like common matters," 1 | v. Loveridge, 70 N. Y. 387. Bl. Comm. 304, is cited among the authorities.
“Senile dementia" has certain marked and defined The court in this instance seemed to suppose that symptoms in addition to the characteristics of exidiocy was a total absence of intellect, and that the treme old age. The first symptom is loss of memory. statutory expressiou "of unsound mind " meant a Yet this of itself is not "senile dementia,” and where mind totally unsound, and as the testator had some it is not “total or does not extend to the testator's
glimmering of reason,” they held that she was immediate family or property" it does not impair tesneither an idiot nor “non compos mentis." The doc- tamentary capacity, for as Chancellor Kent says in trine of Stewart v. Lispenard is not living law to-day. Van Alst v. Hunter, 5 Johns. Ch. 148, a somewhat It was reviewed in Delafield v. Parish, ut supra, and great failure of memory can exist and yet “the solid disapproved. A mere “glimmering of reason" cannot | power of understanding be there." "Senile demenconstitute testamentary capacity as that term is now tia" brings with itself a change not only of an intelunderstood. What is meant by such term will be lectual, but of a moral nature. It is accompanied by