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should be handed to the court, and not discussed in hearing of the jury. Tenth, that special verdicts should be demanded as much as possible. These are all good suggestions, but not particularly novel. In fact we believe most of them were anticipated in substance by the report to the American Bar Association last year.

The Revue Internationale du Droit Maritime, edited by M. Autran at Marseilles, occupies a rather unique place in law literature. It aims, and seems fairly to succeed in giving the shipping law and adjudications with great promptness from almost al Europe and some other countries. Excellent summaries of our own decisions translated and condensed from this journal, have been given. The essays of Prof. Laurin, on liability of vessel in charge of a pilot, and of M. Valroger, on general average, and of M. de Courcy, on question of contribution of freight in general average are specially noteworthy. It would seem that any magazine, that could furnish the latest shipping law of France, Germany, England, Belgium, Netherland, Denmark, Italy, and even Brazil, ought to be better known to the practitioner in the commercial courts of this country.

The American Law Review does us the honor, in defending itself and us against the assaults of the Columbia Law School boys, good naturedly to say: "It is well known that our Albany contemporary is edited by the Nestor of legal journalism a gentleman who has sat upon the tripod from away back in the palæozoic period of law periodicals." We are well aware that we are getting on in years, but we believe we are more generally chargeable with the rashly reforming spirit of youth than with the staid conservatism of old age. After all, the ALBANY LAW JOURNAL, although venerable by comparison, has not yet gained a prescriptive right to be. But we are old enough to have learned that we do not "know it all," and to be willing to hear reason and take counsel - even change our mind, sometimes. There are no people so unwise as those who never change their mind. We know we have a way of expressing our opinions pretty strongly, but that springs out of the habit of advocacy, which we have not outgrown, and the zeal of reform, which was born in us and which we hope never to outgrow.

Mr. Field and Mr. Moak have been exchanging discourtesies about the Code of Evidence. The governor wanted to get a "perfectly unprejudiced " opinion on its merits, and so he called in Mr. Moak and he said, having "hastily read some fifty sections" of it, that it hadn't any. Mr. Moak's opinion was published in the Argus. This drew out Mr. Field in answer, and now Mr. Moak sends us a pamphlet containing the two papers and his own reply to Mr. Field. Mr. Moak, as is well known, has executed some creditable performances. This is not one of them. It is not creditable to sneer at the

work of Alexander W. Bradford, William Curtis Noyes and David Dudley Field, nor to talk about Mr. Field's "bantling." Better leave that to the veteran Mr. J. Bleecker Miller. It is not creditable in Mr. Moak to hint reflections at Mr. Field about injunctions and the like in litigations in which those gentlemen were opposed to one another as counsel, and in which, we believe, Mr. Moak's party made freer use of injunctions than Mr. Field's party. At all events, we hope Mr. Field will take no notice of a slur which never had any basis except in the heated imagination of legal oppo nents, which is unworthy of Mr. Moak, and which it is not worth'Mr. Field's while to resent. As to Mr. Moak's original criticisms, a dozen or so in number, two or three are perhaps well founded; several he admits to be doubtful, and some are extremely baseless. For example: "Section forty-five provides that 'each party must prove his own affirmative allegations.' Suppose a plaintiff fails to prove his, is the defendant, in order to succeed, obliged to prove his?" Who but a man determined to find fault could ask such a question as that? Again, the Code provides that evidence may be given of "an act or declaration of another, in the presence and within the observation of a party, and his conduct in relation thereto." Mr. Moak says "the conversation is not competent evidence against him," if he is deaf, drunk, asleep, or does not understand the language. Our impression is that Mr. Moak is wrong; we think it may be given in evidence if in his course those facts may be presence, but of shown to counteract its effect. But how can the matter be said to be within the "observation" of the party in such circumstances? When Mr. Moak lays aside his microscope, he fares still worse. He attributes the corruption and impeachment of judges to the Code of Procedure! Just as if that Code gave them any opportunity they would not have had under the old law. He thinks the Indian Code cannot be a great success, because of the revolt of the sepoys. He finds fault with the Code Napoleon because Napoleon would not recognize his brother's marriage with Miss Patterson. He says "the French people have changed their government on an average as often as every fifteen or twenty years since their glorious Code was adopted." Mr. Moak ought to bear in mind that they have been advancing to republicanism and liberty. As to California he says: "Its people were composit, Spaniards, Mexicans, Greasers, Chinese, roughs, gamblers, and scoundrels from every part of the world, mixed with a sprinkling of intelligent and good men," etc. Does this correctly describe the population which adopted the Code ten or twelve years ago? We advise Mr. Moak to keep away from San Francisco. Then comes one of his favorite arguments. Our Court of Appeals has issued one hundred volumes. The Supreme Court of California in the same period has issued sixty-five. Therefore "California has had more litigation under the Code than New York has had without one." But California has had only

sixty-five volumes all told. How many has New York had?-Supreme Court, Superior Court, Common Pleas, and all the rest, leaving out the reports of practice probably five hundred. Finally, Mr. Moak quotes from Mr. Justice Gray to prove the "expansive character" of the common law. He need not have taken the trouble. Every one knows it is "expansive" enough. Mr. Justice Gray "is a great and learned jurist," but so is Mr. Justice Miller-perhaps the ablest in this country, and he favors codification. On the whole, we advise Brother Moak to call in his pamphlet. It will not please the unprejudiced, and will make the New York city men jealous.

NOTES OF CASES.

by will. The woman has the same authority to execute the power of revocation and appointment when married as when sole. The nature and not the form of the instrument determine whether, at common law or under statutes, it is a will of which marriage is a revocation. So are the authorities. Hodsden v. Staple, 2 T. R. 684; Hodsdew v. Lloyd, 2 Bro. Ch. 534; Taylor v. Raines, 7 Mod. 147; Logan v. Bell, 1 C. B. 872; McMahon v. Allen, 4 E. D. Smith, 519; Lant's Appeal, 95 Penn. St. 646; S. C., 40 Am. Rep. 646, cited and quoted from. The will, so far as it is in execution of the power of appointment contained in the agreement referred to, 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."

Osgood v. Bliss, Massachusetts Supreme Court, April, 1886, H., an unmarried woman, executed a will offered for probate. It disposed of her estate separately settled on her by ante-nuptial agreement of her husband, the settlement giving her full power of disposition, and providing that it should descend according to her will, and that the marriage should not revoke the will. The statute of Indiana provides that subsequent marriage revokes an unmarried woman's will. The court said: "Whether a power of appointment in an antenuptial contract can be executed before as well as after the marriage depends upon the terms and construction of the agreement. In this case the power to appoint by will before the marriage is clearly given; the provision that the marriage shall not work the revocation of the will executed prior to it shows that it was intended that the power might be executed before the marriage. The question is whether the execution of the power by an appointment by will before the marriage was revoked by the marriage. The difference between a will and an appointment by will in this case may seem very slight, but there is the material practical difference between the two that a married woman may make an 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 statutes. The theoretical distinction is that a will concerns the estate of the testator, and an appointment under a power that of the donor of the power. Such a power can be given to be executed when sole or married, and can be executed by a married according to its terms, by deed, will, or otherwise. There can be no reason for the distinction that the execution, when sole, of a power to appoint by deed or will, when sole or married, if by will should be revoked, but if by deed should not be revoked, by marriage. The will operates in the same manner as the deed does, as the execution of a power, not as the disposition of the estate. The reason given for holding that marriage is deemed to be a revocation of a woman's will that she thereby divests herself of the power of revoking it, and destroys the ambulatory character necessary to a will-does not apply to an appointment

In Fowler v. Callan, New York Court of Appeals, it is held that an agreement by an attorney to take for his compensation for defending a client in a controversy involving title to certain lands, so much of the value of one-half these lands, thereupon conveyed to him as might remain after the costs and expenses had been paid, is valid. The court, Finch, J., said: "The agreement appears to have been purely one for compensation. If the client had given to the attorney money instead of land the contract would have differed in no respect, except the contingent character of the compensation. The arrangement contemplated success in the litigation, in which event the land would pay the costs and expenses and the attorney's reward, and both would be discharged out of the property of the client placed in the hands of the attorney for that precise purpose. The contract in no respect induced the litigation. That was already begun and existed independently of the agreement, and originated in other causes. It did not tend to prolong the litigation. It made it to the interest of the attorney to close it as briefly and promptly as possible, and at as little cost and expense as prudence would permit. The plaintiff therefore stirred up no strife,

woman

We

his compensation so much of the value of the land
conveyed to him as might remain after, out of that
value, the costs and expenses had been paid.
do not think the statute condemns such an agree-
ment. 3 R. S. (6th ed.), p. 449, §§ 59, 60; Code, §§
73, 74. The Code revision changed somewhat the
language of the prohibition, but nevertheless must
be deemed a substantial re-enactment of the earlier
sections. Browning v. Marvin, 100 N. Y. 148. They
forbid, first, the purchase of obligations named by
an attorney for the purpose, and with the intent of
bringing a suit thereon; and second, any loan or
advance, or agreement to loan or advance 'as an
inducement to the placing, or in consideration of
having placed in the hands of such attorney' any
demand for collection. The statute pre-supposes
the existence of some right of action, valueless un-
less prosecuted to judgment, which the owner
might or might not prosecute on his own behalf,

but which he is induced to place in the hands of a particular attorney by reason of his agreement to loan or advance money to the client. It contemplates a case in which the action might never have been brought but for the inducement of a loan or advance offered by the attorney, and in which the latter by officious interference procures the suit to be brought, and obtains a retainer in it. The statute speaks of a 'demand' which, by enforcement, will end in a 'collection;' phrases which have no 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. The plaintiff made no 'loan or advance' in any proper sense of those words. They imply a liability on the part of the clients to repay what was thus lent or advanced. The attorney loaned nothing, and he advanced nothing to the client which the latter was bound to reimburse. Simply he was paid in advance an agreed price, taken in land instead of money, and out of which he was first to pay costs and expenses. The facts before us are not within the terms of the statute, as it respects a 'demand,' which is the subject of collection'; but our conclusion rests more strongly upon the conviction that the agreement made was one for compensation merely, and had in it no vicious element of inducing litigation, or holding out bribes for a retainer."

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In Johnson v. Mayor of Croydon, 16 Q. B. Div. 708, a by-law made by the council of a borough provided that no person not being a member of Her Majesty's army or auxiliary forces, acting under the orders of his commanding officer, should sound or play upon any musical instrument in any of the streets in the borough on Sunday. Held, that such by-law was unreasonable and ultra vires, and therefore void. The court, Hawkins, J., said: "It does not seem to me unreasonable to suppose that there might be cases where the inhabitants of a street might desire to have music of a sacred character played on a Sunday, and where such music would not occasion any annoyance. This by-law however would include any sort of music played under any circumstances, and however harmless or free from offense such music might be. It appears to me that such a by-law is unreasonable. If the town council desire to have power to put a stop to music of such a character as may be offensive, or likely to occasion annoyance to the inhabitants, I think they might, probably, by means of an amended by-law effect their object, but it is not for us to suggest how such a by-law might be limited so as to be reasonable; all we have to do is to determine whether this by-law is reasonable. The case of Reg. v. Powell, 51 L. T. 92, was a very different case from the present. There the by-law imposed a penalty on every person who should sound or play upon any musical instrument in any street, or near any house within the borough, after having been required by any householder resident in such street or town, or any police constable to desist from making such

sounds or noises, either on account of any illness of any inmate of such house, or for any reasonable cause. It appeared that there had been in that case numerous complaints by the inhabitants, and the appellant had been requested by the superintendent of police to desist from playing, but refused to do So. It seems to me that the by-law in that case was a very reasonable by-law. This by-law makes playing a musical instrument an offense, whether it causes a nuisance or annoys anybody or not."

THAT

TESTAMENTARY CAPACITY.

HAT a man may do with his own whatsoever he will, provided it be not to the injury of the legal rights of another, is a principle of elementary law.

That one may scatter his property broadcast over the earth, to his kin or to strangers, to the deserving or the undeserving, if he freely wills it, the law distinctly affirms. The power of making such disposition of oue's goods, when analytically considered, will be found to be based upon the free exercise of the will.

Whenever by the force of circumstances there is either a natural or a legal impediment to the free exercise of the will, the right to make such disposition is by law withheld. When therefore can one dispose of his goods by way of a last will or testament?

The right to make a will is by law protected when the testator is competent to exercise with freedom the faculty of will power-in other words, whenever he possesses the capacity of freely doing or not doing whatever is suggested to his mind. By legal presumption infants do not possess such capacity, and consequently their right to make a testamentary disposition of their goods is not recognized. Infancy is considered an impediment to the free exercise of the will, and consequently infants are absolutely presumed to lack testamentary capacity. As this impediment is in many cases not real, but hypothetical, not fact, but presumption, it is somewhat limited by the law in its application. Infants, generally speaking, lack testamen. tary capacity, but a male infant of eighteen years or over, or a female infant of sixteen years or over, while in the eyes of the law possessing absolutely no testamentary capacity to dispose of real property, is deemed to possess sufficient testamentary capacity to dispose of property not real-that is, such infant is deemed competent to give away by a last will possibly a million dollars in bonds or securities, and yet is incompetent to similarly dispose of but one foot of real property. If the law be deemed a science, and its rules are to be considered as based upon principle, this distinction would seem absurd, especially as it requires no greater amount of free will and intelligence to dispose of real than of personal property, and as it seems inconsistent to admit in the same person free will as to one thing and deny it as to another, when to the will considering them there is absolutely no difference between them as far as the mere exercise of intelligent volition is concerned.

Such however is the law on this point. Its reason is to be found in the feudal origin of our jurisprudence which even to-day so dominates our legal system that it requires two trials to finally eject a squatter from one's land, and but one to deprive a man of his life.

Infants excluded, everybody save "idiots," and persons of "unsound mind" can make a valid will. Infancy being considered to some extent a legal impediment, idiocy and mental unsoundness may be viewed as natural disqualifications. The law presumes a man

innocent rather than guilty, and of sound rather than unsound mind.

The ordinary man is compos mentis, and on him who asserts any one to be unlike his fellow, lies the burden of proving his assertion. Delafietd v. Parish, 25 N. Y. 9, opinion by Gould, J., concurred in by a majority of the court.

In a later case Church, C. J., remarks: "The presumption of sanity always exists-that being the normal condition of man." Banker v. Banker, 63 N. Y. 409.

In an early New York decision Van Ness, J.. says: "In all cases where the act of a party is sought to be avoided on the ground of his mental imbecility, the proof of the fact lies upon him who alleges it, and until the contrary appears sanity is to be presumed. This rule of law is recognized by all the elementary writers on the subject, and in all the adjudicated cases which I have met with, both in law and equity, the court in their reasoning and opinions seem to take it for granted." (Here follow numerous citations.) "But independently of authority, the law ought to be so. Almost all mankind are possessed of at least a sufficient portion of reason to be able to manage the ordinary concerns of life. To say therefore that sanity is not to be presumed until the contrary is disproved, is to say that insanity or falsity is the natural state of the human mind." Jackson v. Vandusen, 5 Johns. 144.

After a comprehensive examination of this question Judge Redfield says: "It must be admitted upon a careful examination of all the cases that the burden of proof of insanity in the case of a will equally with that of a deed or other contract is upon the party alleging it, and who claims the benefit of this fact when established." 1 Redf. Wills, 32, § 4.

It would seem that on a question of this nature there should be but one opinion. That the natural would be also the legal presumption might be taken for granted without debate. Yet on this question there has been and still is a wide variance of opinion on the part of the courts of several jurisdictions.

It has been contended by those learned courts that while in every other affair of life a man should be presumed to be sufficiently sane to make a contract, sign a deed, or commit a crime, yet he must be proved competent to make a will. Why the presumption of capacity should not be applied to the act of making a will as well as to the act of buying, selling or stealing, it is not very easy to see.

In Delafield v. Parish, ut supra, Davies, J., in a very learned opinion, takes the opposite view, and cites numerous English authorities to sustain the doctrine that sanity must be proved, not presumed.

The opinion of Baron Parke in Barry v. Bullin, 1 Curt. 637, where he says: "In all cases the onus probandi is imposed on the party propounding the will,” is cited as the chief authority, accompanied by several later cases holding the same views. Lord Brougham's decision in Panton v. Williams is also cited to the same effect. In the opinion of Van Ness, J., in Jackson v. Vandusen, ut supra, numerous English cases are cited holding opinions decidedly contrary to those of Baron Parke, an examination and comparison of which is most profitable to one desiring a complete acquaintance with the growth of the English law on this question.

The Massachusetts case, Crowninshield v. Crowninshield, 2 Gray, 526, is cited by Davis, J., ut supra, with special approval. In this case, Thomas, J., writing the opinion of the court, enters into a very elaborate and able argument to show why sanity should be proved, not presumed. His conclusions are based upon two arguments: First, the right to make a will is a dero

gation of the statute of descents, and cuts off the rights of the heirs at law, and "the heirs at law rest securely upon the statutes of descents and distribution until some legal act has been done by which their rights under the statutes have been lost or impaired." Therefore whoever offers a will for probate must prove it to have been made by one of sound mind, as mental soundness is a sine qua non for the maker of an instrument divesting heirs at law of their rights. Second, "wills are supposed to be made in extremis. In point of fact a large proportion of them are made when the mind is to some extent enfeebled by sickness or old age," therefore the sanity of the testator should be proved, and not presumed.

The first argument of Thomas, J., is answered as follows by Gould, J., in Delafield v. Parish, ut supra: "In this country, where individual rights know no restraint which is not imposed as necessary to the general good, there is no policy in the law tending to prevent a man's doing what he wills with his own. And the statute of wills enabling a man to direct how his property shall go after his death is but supplementary to his absolute control over it during his life. We acknowledge no right to it (as against his will) in any one, whether before or after his death. Our statute of descent takes effect only when the owner of real estate dies without devising it, and that of distributions only when a person dies intestate."

Nemo est haeres viventis is an old maxim of the law, and it is equally true that there can be no heirs at law unless a man dies intestate, consequently a man dying leaving a last will and testament leaves no heirs at law whose rights can be cut off by any thing or anybody, they being entirely “in nubibus."

It seems that the first argument by Thomas, J., is unquestionably weak. The second is equally objectionable. Old age does not necessarily destroy the mind, nor do the pangs of a last sickness. Literature, history, every-day life, and even the law, bring overwhelming disproof of any such presumption. If it would be in violation of law and common sense to presume old men and the sick naturally incompetent, it is quite illogical to practically uphold such a presumption by demanding proof of the contrary.

Crowninshield v. Crowninshield was cited in the argument in Baxter v. Abbot, 7 Gray, 83, another Massachusetts case, and Thomas, J., who wrote the opinion in both cases, announced that the majority of the court, he dissenting however, hold that sanity is to be presumed, but yet the executor has the burden of proof-in other words, the executor must prove what is by law presumed.

In behalf of this doctrine it has been contended that the ordinary presumption of competency as to contracts should not be applied as to wills, because "while society cannot get along without contracts, it may easily dispense with wills," and that in fact the law makes for a man a much better disposition of his property that he can make for himself by will. It is also urged that the presumption of sanity is of no practical value, as no surrogate would ever admit a will to probate without proof of the testator's competency. The first argument is of no weight unless it be assumed that the policy of our law is to restrict indi. vidual liberties, and that the statute of descents, rather than the statute of wills, is the favorite of the law. Such an assumption would be baseless; both statutes stand on an equal plane, one to take effect only when the other does not. As to the latter argument, the fact that surrogates require pro forma preliminary evidence does not in the least affect the value of this presumption of sanity, which is taken into account when the evidence pro and con is considered. To-day, when there are to be found in every commu

nity men styling themselves "alienists" and "experts in mental diseases," ready to testify for a fee, and always endeavoring to earn their compensation, generally expressing opinions of absolute incompetency of a testator, it is quite necessary to have such a rule of law requiring proof of alleged insanity.

It must be said however that in England, Massachusetts, Maine and New Hampshire the rule in Crowninshield v. Crowninshield is the law.

Where the opposite rule holds, after pro forma evidence is given, the burden is on the contestants, and to invalidate a last will the testator must be proved to have been an "idiot" or of "unsound mind.” What is an "idiot?" Idiocy is not the result of mental impairment. The mind of an idiot is not "a mind diseased," but one which is radically incomplete. Medico-legal writers define idiocy as "a congenital condition manifested by imperfect development of both mind and body." "The idiot is either non compos or his capacity is below that of another person of his age. In some cases the intelligence is even upon a par with that of some of the lower animals, and his mental expression is chiefly emotional. In completely idiotic persons there is no sign of recognition, no indication of memory, and the intellectual capacity is not to be compared to that of some of the intelligent animals. There is the absence probably of a sufficient number of sensory cells and their connecting filaments, and the result is the absence of mind." Ham. Med. Juris. 21.

Many idiots however have mental structures less im. perfect, and possess in some faculties a partial brightness, and are capable of being taught to talk and read. There can be however but little debate upon the question of the idiocy of a particular person. Its evidences are plainly visible to observation, and its physical accompaniments render its detection a rather easy matter. In every text-book of medical jurisprudence its symptoms are enumerated, and they are familiar to almost every medical practitioner. In the eyes of the law idiots are mere automata, being considered the prey of a passing emotion, passion or impulse. They cannot make a contract or commit a crime. This theory of the law is based upon the hampered and clogged exercise of what little freedom of will it is possible for one almost totally devoid of reason to possess. There being no freedom of will, there is consequently no testamentary capacity.

In Stewart v. Lispenard, 26 Wend. 255, the question of an idiot's capacity to make a will arose. The testator in this case was most certainly either an idiot or an "imbecile," which terms are by some held to be synonymous. She had however some slight traces of intellect. The surrogate in the first instance refused to admit her will to probate on the ground of her idiocy. The chancellor, on appeal, sustained the judgment of the court below, which was however reversed by the Court of Appeals, which handed down the following doctrine, viz., that if one be not totally deprived of reason he can make a valid will.

Blackstone's definition: "A man is not an idiot if he hath any glimmering of reason, softhat he can tell his parents, his age, or the like common matters," 1 Bl. Comm. 304, is cited among the authorities.

The court in this instance seemed to suppose that idiocy was a total absence of intellect, and that the statutory expressiou "of unsound mind" meant a mind totally unsound, and as the testator had some "glimmering of reason," they held that she was neither an idiot nor "non compos mentis." The doctrine of Stewart v. Lispenard is not living law to-day. It was reviewed in Delafield v. Parish, ut supra, and disapproved. A mere glimmering of reason cannot constitute testamentary capacity as that term is now understood. What is meant by such term will be

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shown. "Idiocy" and "imbecility" will often be found used as convertible terms. They are so deemed by many medico-legal writers, while to others a wide distinction exists between them. Some define "idiocy" as a defect either " congenital" or “acquired." while others call the "congenital" defect "idiocy," and the "acquired" defect "imbecility." This is merely a question of medico-legal definition, and it is quite clear that the legal term "idiot" includes both conditions.

The next disqualification is where the testator is of "unsound mind."

Under this heading arise the multitude of will contests, furnishing so much work for the surrogate and so much scandal for the public. At a first glance the words, "of unsound mind" might seem to mean that anyone whose mental faculties had in any way deteriorated or lost their former degree of relative perfection was disqualified from making a will. Such a view however is far from being correct.

A mind is said to be " unsound," when taken as a whole, its operations betray unsoundness. An apparatus may be weakened in some of its parts, and yet perform with considerable accuracy the work for which it was constructed. So with the human mind, and it is only when its operations, considered one with the other, are clearly abnormal, that the mind as a whole can be termed "unsound" in the sense of the statute. As testamentary capacity is based upon the free will of the testator, such mental peculiarities as destroy or hinder an intelligent, free exercise of the will, destroy at the same time testamentary capacity. Among the common forms of "unsound mind" which are alleged to invalidate a last will, “Senile Dementia" is most frequently charged. Our professional and business men remain at their posts until an advanced age, and when they retire from active operations their minds, losing their former stimulus, often sink into a state of extreme feebleness, and sometimes they fall victims to "Senile Dementia."

This form of mental degeneration is the result of extreme old age, coupled with other and perhaps unknown causes. It is not however the usual accompaniment of old age. Some lose their natural powers sooner than others, and while with some the burden of years may weaken, cloud or undermine the mental structure, yet with others there is no impairment of the mind's grasp, and in some cases there seems to be an increase in mental power. No presumption of "senile dementia" is to arise because of the testator's senility.

In Horn v. Pulman, 72 N. Y. 269, Andrews, J., says: "There is no presumption against a will made by a man of advanced age; nor can incapacity be inferred from an enfeebled condition of mind or body. Such a rule would be dangerous in the extreme, and the law wisely sustains testamentary dispositions made by persons of impaired mental and bodily powers, provided the will is the free act of the testator, and he has sufficient intelligence to comprehend the condition of his property, and the scope, meaning and effect of the provisions of the will." See also Children's Aid Soc. v. Loveridge, 70 N. Y. 387.

"Senile dementia" has certain marked and defined symptoms in addition to the characteristics of extreme old age. The first symptom is loss of memory. Yet this of itself is not "senile dementia," and where it is not "total or does not extend to the testator's immediate family or property" it does not impair testamentary capacity, for as Chancellor Kent says in Van Alst v. Hunter, 5 Johns. Ch. 148, a somewhat great failure of memory can exist and yet "the solid power of understanding be there." "Senile dementia" brings with itself a change not only of an intellectual, but of a moral nature. It is accompanied by

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