Opinion of the Court, per DANFORTH, J. desire on his part. Such declaration may also be inferred from his conduct. He knew the paper was his will; he had directed its preparation; it was written in his presence, read to him and read by him. He had desired Wakelee's presence to witness the will, and sitting by him, and by the other witness after signing it, passes it to one for signature, and sees first that one to whom he had declared the paper to be his will, and then the other sign as attesting witnesses. For what purpose and with what intelligence this was done the jury have found; they say that at the time of the execution of the paper writing purporting to be the last will and testament of Frederick F. Lane, he fully comprehended the effect of his said act in so subscribing the same, and that (i. e., the effect of the act) of the subscribing witnesses thereto. They have said, moreover, that "he then understood that this paper was his last will and testament," and that the witnesses subscribed "said paper purporting to be said will, as attesting witnesses, at the request of the testator." We find no room for doubt or mistake. The testator knew, and the witnesses understood from his acts and conduct, as he intended they should, that the instrument then executed was his will. The statute upon this point exacts nothing more, and it is not denied by the respondent that on every other there was strict compliance with its terms. We find then that the testator subscribed the will in the presence of the witnesses, made known to them its nature, and requested their attestation. On his part nothing more was required, and on their part was. attestation of the will at his request. Thus every safeguard prescribed by statute against improvidence and fraud was substantially observed. The appellant presents another ground of appeal. Upon the trial the testimony of Mrs. Lane was offered by the proponent, and excluded. She was the executrix of the will and a legatee under it. The other parties to the controversy are the heirs at law of the testator. As to any personal transaction or communication with the testator, she was of course incompetent to testify, under section 829 of the Code. She, however, gave Opinion of the Court, per Danforth, J. some other evidence which, it is claimed, was not precisely of that character. At the time of the drawing and execution of the will, she was present. She was familiar with the sounds made by the testator, and the signs or motions by which he communicated ideas or wishes. She conversed with him on that occasion. Her testimony, so far as it embodied words said to him by herself, or her report of what he said to herself or others, is incompetent. It is said by Shephard in his Touchstone (Chap. 23, p. 407) "If he that doth write the will cannot hear the party speak, and another that stands by the sick man doth tell him what he doth say, in this case, if there be none others present to prove that he reported the very words of the sick man, this will be no good testament." This rule has no literal application to Mrs. Lane's evidence, but the principle of it, as well as the reason of the prohibition of the Code, applies. It was not sought to prove by her the direction of the testator as to his property and what he would have done with it, but her entire testimony was important only, because it narrated a transaction in which as one present and conversing she took a part, and its value depended upon what she gathered from the testator upon that occasion. It was else of no moment. What she learned from him no one else could either verify or deny, and her evidence is subject to the objection on which the observation above quoted depends, and to the spirit at least, if not the letter of the Code. Something may have occurred by word or act in the presence of the testator, and between him and others, to which she was not a party, and of which she could testify (Cary v. White, 59 N. Y. 336; Kraushaar v. Meyer, 72 id. 602), but her testimony was not so limited, and whether any portion of that given should have been received, and whose duty it was to indicate that portion, need not be decided, for upon the first ground stated, we think the proponent is entitled to a new trial, and the point last suggested may not again arise. The order appealed from should, therefore, be reversed and a new trial granted, costs to abide the event. All concur, except RAPALLO, J., not voting. Statement of case. 95 503 MILES B. RIGGS, as Administrator, etc., Respondent, v. THE 115 504 To set aside a gift of property because of unsoundness of mind of the donor, it is not essential to show that he was an idiot or an imbecile at the time; it is sufficient to show that he was laboring under a delusion out of which he could not be reasoned, which led him to. make the gift, and which so took possession of his mind that he could not act upon the subject sensibly. If such delusion exist upon one subject the person, as to that, is of unsound mind, although, in regard to other subjects, he may reason and act intelligibly. Where, therefore, it appeared that a person, under the influence of a belief that his wife and children had conspired together to injure him, which had no foundation in fact and was merely an insane delusion, for the purpose of preventing them from inheriting, gave a large portion of his estate to defendant under an arrangement that it was to pay him interest thereon during his life, this arrangement having been advised by an agent of the defendant, who well knew his mental condition, held, that the gift was invalid and that defendant was properly required to restore the property; also, that it was immaterial to inquire whether restoration could be made without impairment of defendant's estate. As to whether it was essential to show that defendant was chargeable with knowledge of the donor's condition of mind, quære. Argued March 17, 1884; decided April 15, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the fourth judicial department, in favor of plaintiff, entered upon an order made January 25, 1883, which denied a motion for a new trial and directed judgment on a verdict, exceptions taken during the trial having been ordered to be heard, at first instance, at Special Term. This action was brought to recover back money alleged to have been given defendant by Ira Riggs, plaintiff's intestate, he being at the time of unsound mind. The case, upon a former appeal, is reported in 84 N. Y. 330. It appeared that defendant, on receipt of the moneys, gave back an agreement to pay Riggs the interest on the sums received during his life, and after his death to his sister and widow during their lives. Defendant paid interest to Riggs 95 503 75 AD1337 Statement of case. during his life; his sister died shortly after him. Defendant paid no interest after his death to any one. The widow, after plaintiff's appointment as administrator, gave to him a written consent that he might surrender the agreement to pay interest. Plaintiff, before the commencement of the action, tendered these, with the consent, to defendant and demanded a return of the moneys. The further material facts are stated in the opinion. Howard Payson Wilds for appellant. When it is sought to avoid a contract of gift on the ground of mental incapacity, the burden of establishing it rests on the party by whom it is alleged. (Delafield v. Parish, 25 N. Y. 9, 97; Gardner v. Gardner, 22 Wend. 526; Brown v. Torrey, 24 Barb. 583; Jackson v. King, 4 Cow. 207; Wharton & Stille's Med. Jur., § 251.) The term "unsound mind" imports a total deprivation of sense. (Foster v. Means, 1 Speer's Eq. 569; Ordronaux's Jud. Asp. of Insanity, 359; Stewart v. Lispenard, 26 Wend. 225; Blanchard v. Nestle, 3 Denio, 37; Petrie v. Shoemaker, 24 Wend. 85; Osterhout v. Shoemaker, 3 Denio, 1, 37, n.; Jackson v. King, 4 Cow. 207; Clark v. Fisher, 1 Paige, 171.) It is only the belief of facts which no sane person would believe, which is insane delusion. (Taylor's Med. Jur. [6th ed.] 626; Dew v. Clark, 1 Add. 279; 3 id. 79; 2 Greenl. on Ev., § 371 a; Frere v. Peacock, 1 Rob. Ecc. 442, 445; Fulbeck v. Alison, 3 Hagg. 527; Ordronaux's Jud. Asp. of Ins. 373; 1 Redf. on Law of Wills, 67; Phillips v. Chater, 1 Demorest's Surr. Ct. 533; Boughton v. Knight, 3 P. & D. 68; 2 Greenl. on Ev., § 371 a; Frere v. Peacock, 1 Rob. Eccl. 422; 2 Greenl. on Ev., § 689 n.; Am. S. F. Soc. Hopper, 34 N. Y. 619; Clapp v. Fullerton, id. 190; Jackson v. Jackson, 39 id. 157; Wait v. Breeze, 18 Hun, 404; Phillips v. Chater, 1 Demorest, 535.) As the intestate was apparently capable of managing his property and affairs, plaintiff should have been nonsuited. (1 Wharton & Stille's Med. Jur., § 2; Ray's Med. Jur. of Insanity, 135; Dennett v. Dennett, 44 N. H. 531; Creagh v. Blood, 2 J. & L. 509; V. 1 Statement of case. Ordronaux's Jud. Asp. of Ins. 308; Jackson v. King, 4 Cow. 207.) The moneys transferred to the defendant cannot be recovered by the intestate's administrator on any less evidence as to the intestate's unsoundness of mind, than would have been required to be shown for the appointment of a committee, or to have avoided the transfers inter vivos. (Matter of Barker, 2 Johns. Ch. 237; Willard's Eq. Jur. 680; Matter of Morgan, 7 Paige, 237; Matter of Shaul, 40 How. Pr. 204; 1 Broom & Hadley's Com. 714; Wharton & Stille's Med. Jur., § 101; Ordronaux's Jud. Asp. of Insanity, § 21, p. 37; Matter of Barker, 3 Johns. Ch. 237; Matter of Morgan, 7 Paige, 236; Matter of Mason, 3 Edw. 380; 3 Barb. Ch. Pr. 659; 3 3 T. & S. 420; Nix. Forms, 192; Ordronaux's Jud. Asp. of Insanity, 492; Jackson v. King, 4 Cow. 207, Person v. Warren, 14 Barb. 494; Osterhout v. Shoemaker, 3 Denio, 37 n.; Sprague v. Duell, 11 Paige, 480; Odell v. Buck, 21 Wend. 142; Blackford v. Christian, 1 Knapp, 73; Osmond v. Fitzroy, 3 P. Wms. 30; Fonblanque on Equity, 62; Person v. Warren, 14 Barb. 488; Petrie v. Shoemaker, 24 Wend. 85; Davis v. Culver, 13 Dow. Pr. 62; Ball v. Mannen, 3 Bligh [N. S.], 1; 1 Dow's Pr. C. [N. S.] 380; Canfield v. Fairbanks, 63 Barb. 461; Perry on Trusts, 630.) It is incumbent on the party who seeks to avoid a transaction by an insane person to allege and prove that the other party had knowledge of the insanity. (Young v. Stevens, 48 N. H. 133; Harrison v. Richardson, 1 M. & R. 504; Ingrahan v. Baldwin, 9 N. Y. 48; 12 Barb. 9; 21 N. Y. 48; 2 Jones on Mortgages, § 1510; 2 Chitty's Pl. 436, ed. of 1876; Bullen & Leake's Forms, 354; 2 Abbott's Forms, 41; Behrens v. McKenzie, 23 Iowa, 343; Beals v. Lee, 10 Barr, 56; Person v. Warren, 14 Barb. 488; Loomis v. Spencer, 2 Paige, 153; Dane v. Kirkwall, 8 C. & P. 679; Moss v. Tribe, 3 F. & F. 297.) Default of duty by heirs at law is ground of estoppel. (Scanlon v. Cobb, 85 Ill. 296; Beggan v. Greene, 30 Am. Rep. 77; Thompson v. Blanchard, 4 N. Y. 303; Gregg v. Wells, 10 A. & E. 90.) In order to vitiate a contract the knowledge of the lunacy or incapacity must be not merely actual, but presumably suffiSICKELS VOL. L. 64 |