of the city of New York. At the head of the commitment there is a reference to the statute under which it was made as follows: "1st, R. St. pp. 663, 4, 5, 8, LNY, 1842, pp. 146, 20"-and it is recited therein that it appeared by evidence under oath and in writing of two named physicians that she was insane, and that by reason thereof was "so far disordered in her senses as to endanger her own person, or the person or property of others, if permitted to go at large," and that the police justices were satisfied "upon examination" that it would be dangerous to permit her to be at large.

The records of the asylum, which, with the commitment, were received in evidence over the appellant's objection and exception as to their competency, to which reference will presently be made, contain recitals that the duration of her illness prior to her admission to the institution was 2 months, that "natural organization" was remarked as a predisposing cause, and that no exciting cause was known; that her case was diagnosed as "mania," and in the records she is described as "restless, hysterical, fault-finding, fastidious"; and it is recited that she thought she had heart disease, and that she declared that her mother wished to injure her, that she wanted to be with Dr. Van Buren for protection, that she was averse to her husband and wanted to live with a Christian man, that she refused to take medicine on the ground that it might make her more nervous, and that she was “designated as recovered August 14, 1860"-and show that she was discharged on that date after having been there confined for 5 months. She was again received in the asylum, evidently under the same commitment, on the 14th day of September, 1871, at the age of 37, and was then confined there until the 6th day of May, 1888, when she was 53 years of age, and under that date the records of the asylum contain an entry showing that she was discharged on trial and left in the company. of her husband, and that "the patient was somewhat improved."

The commitment and the entries in the records of the asylum, and the testimony of Dr. Dold, who attended the testatrix there for a time, constitute the only evidence relating to her mental condition until about the time of the death of her husband. The entries in the asylum records with respect to her second commitment indicate that they were based in part on observations of the testatrix by some one and in part they constitute narratives of past events with respect to her mental and physical condition and her actions and sayings, and some of them, if true, would indicate mental derangement. The records do not show any diagnosis of her case at the time of her second entry into the asylum, but under date of April 19, 1877, they contain an entry stating that there had been nothing special to note in her case during the past four years, and that she had gradually become more quiet and demented, and that she was rarely untidy or profane, and seldom conversed, and that she "probably has many delusions and is demented." From that time on until July 22, 1879, the records merely indicate that she was quiet and somewhat gloomy, and desirous of being alone, and that her health was good, and that she slept and ate well, but towards the end became more cheerful; and an entry un

der the last-mentioned date is to the effect that "she became demented," and under date of November 19, 1880, there is an entry that she was demented and talked to herself in a low tone, and occasionally "more loudly and obscenely." Under date of March 29, 1881, there is an entry that she refused to recognize her husband that day, and the entries from about that time until her discharge indicate that she was losing flesh, but that she became more industrious and assisted in the kitchen; and under date of May 29, 1883, there is an entry that she had undergone no decided change either physically or mentally for 6 months, that she was very incoherent and for the most part solitary and quiet, but neat in personal habits, and assisted in the general housework, in which she manifested great interest, and took outdoor exercise regularly and ate and slept well. On January 16, 1884, there is an entry that she continued quite comfortable and that at times she was pleasant and answered questions in a fairly rational manner, but at other times she "is entirely irrelevant and irritable"; and under date of May 21, 1885, there is an entry that she was unchanged and "grows very incoherent, somewhat excited, when it is attempted to converse with her," and it purports to give some rambling irrational remarks made by her and states that she talked and scolded to herself. From that time on the entries indicate that her condition, both physical and mental, was improving progressively, and the only reference thereafter to action or conduct on her part which those observing her deemed worthy of note relates to November 27, 1885, wherein it is stated that "mentally there has been no material change, becomes very irrelevant when she attempts to support a continuous conversation," and on May 29, 1886, there is an entry stating that she was generally amiable and industrious, but "becomes incoherent and angry at times when addressed," and on September 20, 1886, it is noted that she slapped an attendant who requested her to change her hat to go to church, and on November 29, 1886, it is remarked that she "sits in her room, but is vey pleasant and talks freely," and that her explanation of glass blowing "is very vague and mixed," and the record then continues as follows:

"She thinks the water is hard, because it contains quicksilver; that the glass ship suspended is a chicken, for she has seen a chicken mashed flat by a magician; is sometimes very cross, talks a great deal of foolishness to herself. General health quite good"

-which entry purports to be signed by the assistant medical superintendent. After that there are only two entries indicating any irrational condition or conduct on the part of the testatrix, one on the 19th of December, 1887, purporting to have been made by Dr. Dold, which contains the following statement:

"Is cheerful, contented, and demented. She attends the hops, and enjoys them conducting properly always; works regularly"

--and on March 6, 1888, another entry purporting to be made by the same physician stating that, when visited by him on the Saturday before, she conducted herself remarkably well and conversed very rationally, but that the next day she talked to herself and "was as

singular in her actions as usual," and that she did not wish to leave or make any change until warm weather, and that "her manner, speech, and appearance all indicate a chronic condition of mental aberration." After her last discharge from the asylum she continued to live with her husband at their house, No. 135 West Forty-Fifth street, New York City, winters, and at their country place at Providence, N. J., in the summer time, and after his death she continued to reside at the same place in New York until the spring of 1902, when she moved permanently to the country place in New Jersey, which consisted of a comfortable two-story residence and barn on 16 acres of land, and continued to reside there until her death. Her husband was a dry goods merchant, and had accumulated an estate of upwards of $200,000, which by his will, executed after he had lived with her 12 years following her last discharge from the asylum, with the exception of some legacies of $1,000 each to relatives and two trust funds, aggregating $35,000, he left to her unconditionally and named her as executrix, with two friends as executors. For the most part of the time after her husband's death she resided alone, but she occupied only the lower part of the house at Providence, N. J., and for all or a considerable part of the period she evidently rented the upper story, and it was occupied for residential purposes. Part of the time she had a servant, but for a large part of the time she had none, and it is to be inferred from the evidence that this was owing to her inability to procure or retain one. None of her relatives, with the exception of the appellant, visited her for a number of years prior to her death. The only companionship she had after the death of her husband appears to have been that of a Mrs. Heroy, who was a deaconess of the Methodist Church, of which the testatrix was a member.

The principal testimony with respect to the life of the testatrix during this period was given by Mrs. Heroy, who called on the testatrix in the performance of her duties as deaconess and met her for the first time in September, 1900. Mrs. Heroy, from the time of the first meeting with the testatrix, saw her on an average of three times a week down to the spring of 1902, and about twice a month thereafter until 1911, and stopped with her 2 weeks each summer, and saw her daily from December 1, 1914, until the end of March thereafter, during which time they both resided at the Deaconess Home in the city of New York; she and the appellant having persuaded the testatrix to come to the city for the winter. This latter period covers the time of the execution of the will. About the end of March, 1915, the testatrix returned to her home at Providence, and thereafter Mrs. Heroy saw her about once a month until the 18th of September, which was the last time they met. During the course of their acquaintance and friendship they had made trips together to Halifax and to Washington, and they corresponded on an average of once in 2 weeks.

[1] The testimony of Mrs. Heroy indicates that the testatrix was penurious and denied herself comforts which, in view of her means, she could well have afforded. Doubtless the great majority of people, in the opinion of those who know of their financial circumstances, are either too penurious or too extravagant; but they are dealing

with their own and with themselves. Incompetency cannot be predicated solely on either penuriousness or extravagance, and such evidence ordinarily can be of but little or no probative value on the issue of competency. But beyond this Mrs. Heroy's testimony tends to show that the testatrix was in some respects peculiar, and if her statements to Mrs. Heroy were truthful they indicate that at times, at least, she did not fully comprehend the nature and extent of her fortune. The estate of $200,000 which she received from her husband had increased under her management thereof to upwards of $300,000, and consisted of the place in New Jersey, her former home, and two other houses in New York City, from which she derived a regular income, and bonds and mortgages, stock and bonds, and she had about $40,000 on deposit with a trust company. According to Mrs. Heroy she complained of being poor, and when ill and requiring the services of a physician she refused to summon one on the ground that she was too poor, and on one occasion Mrs. Heroy brought this to the attention of the appellant and he sent his own physician to minister to her. Mrs. Heroy's testimony is also to the effect that the testatrix was more or less nervous and talked aloud to herself, and habitually broke off conversations with her by abruptly changing the subject, and had a dazed expression in her eyes at times, and walked very slowly and was afraid to step onto an elevation, and lived on crackers and milk, cereals, and light foods, and admitted that she had not had proper food, but when eating elsewhere she partook of ordinary food the same as others. Mrs. Heroy further testified that the testatrix had about her at Providence a number of cats, which she appeared to be fond of, but virtually starved, and in effect that on one occasion she either hid or mislaid some fish that they had purchased at the market and brought home to cook for their supper, and they were unable to find it until after they had made a meal of other food; that on one occasion during the last winter of her life, when she stopped at the Deaconess Home, she had either, in endeavoring to turn out the gas at night, left it on, or, in endeavoring to turn it on, failed to light it, and the room had become filled with gas, and she came near being asphyxiated; that at times she was uncleanly in her habits during this period; that on receiving a notice with respect to income tax she was angry, and stated that she had no income, and wrote a letter, stating that it was a reply to that effect; that on another occasion she had a delusion with respect to a dress, which she erroneously seemed to think Mrs. Heroy was making for her, and on another occasion insisted that a penknife which Mrs. Heroy had left on a table in her room the night before was Mr. Barney's knife; that on another occasion she complained that the appellant had put her in his automobile with his family, and that she was frightened and nervous over it, and that she did not know what to do, and said that "she never wanted him to do anything like that again"; that on another occasion, while at the Deaconess Home, she had attended a meeting of the stockholders of the Claflin Company, being a stockholder herself, and on returning therefrom seemed to be confused, and was unable to narrate anything that had happened; that she complained of having no appetite when her

appetite was good, and that she did not seem to be able "to reason anything out"; that she was inclined to be suspicious, and thought people were liable to steal and needed watching, and was on her guard in the presence of strangers; that before the will was drawn she complained of her attorney, who subsequently drew it, for having advised an investment in a mortgage which she was obliged to foreclose, taking a deficiency judgment, and stated that she would not employ him again; that, having sustained a loss of about $10,000 with respect. to the Claflin failure, on stock in that company which she had received from her husband, she insisted that she had become a very poor woman, and that she seemed to be unable to sustain a conversation on a subject requiring concentration of thought for any considerable length of time, other than on the subject of her family history and the family history of her husband; that the testatrix was not a Spiritualist, but on one occasion she talked to herself in a very loud voice, and mentioned Mr. Barney's name, and the next morning stated that she knew when Mrs. Heroy went to sleep and said: "I had such an ecstatic. feeling; I felt that our spirits were in communion with each other”--at which Mrs. Heroy became frightened; and Mrs. Heroy testified, in effect, that her physical and mental condition underwent a gradual change from the time the witness first knew her, and at times she was weak, apparently from lack of food, and was in that condition when she came to the Deaconess Home in December, 1914, but on receiving proper nourishment became stronger; that she had an aversion for doctors, and the witness had difficulty in insisting on calling a doctor on one occasion when the testatrix was ill at her home in New Jersey, and then she would not permit the use of the telephone next door, on account of the high rate she claimed would be charged therefor, and the witness was obliged to walk a mile to telephone for a doctor, and she claimed that the doctors had killed her husband, and that she "did not want to spend any money" for medical treatment, and that she would not have the grass on the lawn cut, owing to the fact that she would be charged therefor 20 cents per hour. The witness, with respect to these and other incidents of minor importance, expressed the opinion that the conduct of the testatrix impressed her as irrational.

In addition to the correspondence with Mrs. Heroy, the testatrix had considerable correspondence with the appellant. Many of her letters were received in evidence, and there is nothing in them to justify an inference that she was not of sound mind, and on the contrary they tend to show keen intelligence for one of her age. The correspondence indicates that she had been contemplating making a will for some 2 years before she executed it, and that she ascertained the names and addresses of some of her relatives which she did not know. The appellant was the cashier of a New York bank, and it appears that for some years prior to her death the testatrix consulted him frequently with respect to her investments and entertained a high regard for his opinion and judgment, and she appeared to be grateful for the advice and assistance he had given her, and their relations became quite affectionate. Her two first cousins resided in Tennessee, and