Statement of case.

cient, from circumstances known to the other contracting party, to lead him to a reasonable conclusion that the person with whom he is dealing is of unsound mind. (Hassard v. Smith, 6 Ir. Eq. R. 429; Beals v. Lee, 10 Barr, 56; Wilder v. Weakley, 34 Ind. 181; Ordronaux's Jud. Asp. of Insanity, 302; Brown v. Joddrell, 1 M. & M. 105; Dana v. Kirkwall, 8 C. & P. 679; Matter of Beckwith, 3 Hun, 443; Loomis v. Spencer, 2 Paige, 158; Price v. Berrington, 7 Eng. L. & Eq. 254; S. C., 15 Jur. 999; 3 M. & G. 486; Sprague v. Duel, Clark's Ch. 90; 11 Paige,480; Mut. L. Ins. Co. v. Hunt, 79 N. Y. 541; Allen v. Berryhill, 27 Iowa, 534; Abbott's Trial Ev. 733.) In any contract beneficial to a lunatic, it has been held that the nature of the contract may be taken as prima facie evidence of a lucid interval, which is to say in fact that the law will treat a sane act as presumptive evidence of a sane mind. (Moulton v. Camroux, 4 Exch. 17; Cartwright v. Cartwright, 1 Phill. 90; White v. Driver, id. 84; Williams v. Goode, 1 Hagg. 579; Macadam v. Walker, 1 Dow. Pr. C. 148; Booth v. Blundel, 19 Ves. 508; Neil v. Morley, 9 id. 478; Ordronaux's Jud. Asp. of Ins. 304, 309.) The transfers of money by the intestate to the defendant were not without consideration, being made in view of a certain contract for payment of money by the defendant to the intestate and his widow and sister, and, therefore, were not simple gifts. (Doty v. Wilson, 4 N. Y. 584; Hillis v. Hills, 8 M. & W. 404; Blount v. Burrow, 4 Brown's Ch. 72.) Equity and good conscience do not require repayment where it has been even in part performed, and the other party has derived some benefit; and by the recovery the parties cannot be placed in the exact situation in which they originally were when the contract was entered into. (1 Chitt. Pl. 368; Peters v. Gooch, 4 Blackf. [Ind.] 515; Moulton v. Camroux, 2 Exch. 487; 4 id. 17; S. C., 18 L. J. Exch. 356; Elliot v. Ince, 7 De G., M. & G. 475-487; State B'k v. McCoy, 19 Smith [Penn.], 204; Nace v. Boyer, 6 Casey, 99; 2 Kent's Com. [12th ed.] 451, note; Matter of Beckwith, 3 Hun, 445; Lincoln v. Buckmaster, 32 Vt. 652; Young v. Stephens, 48 N. H. 133; Mussellman v. Cravens,

Statement of case.

47 Ind. 1; 1 Wharton & Stille's Med. Jur., § 8, ed. of 1873; Browne's Med. Jur. of Insanity [2d ed.], § 27; Behrens v. McKenzie, 23 Iowa, 343; Dicken v. Johnson, 7 Ga. 491; Lancaster Co. Nat. B'k v. Moore, 78 Penn. St. 412; Forman v. Whitney, 2 Abb. Ct. of App. Dec. 163; Matter of Gilbert, 3 Abb. N. C. 222; May v. May, 109 Mass. 254.) A witness, not a professional expert, is not competent to express a general opinion upon the question whether an individual was 'sane or insane (except in cases of wills or deeds). (Clapp v. Fullerton, 34 N. Y. 190; O'Brien v. People, 36 id. 282; Real v. People, 42 id. 270; De Witt v. Barley, 9 id. 371; 17 id. 347; People v. Lake, 12 id. 358; Wharton & Stille's Med. Jur., § 272.) The intestate's widow was a necessary party. (Nevins v. Dunlap, 33 N. Y. 676; Gen. Mut. Ins. Co. v. Benson, 5 Duer, 168; Penman v. Slocum, 41 N. Y. 53; Culullu v. Walker, 16 La. Ann. 198; Quisenberry v. Artis, 1 Duval [Ky.], 30; Cramer v. Benton, 60 Barb. 216; S. C., 4 Lans. 295; Sheppard v. Sheppard, 7 Johns. Ch. 57; Westerlo v. Dewitt, 36 N. Y. 340, 343, 347.)

V.

H. V. Howland for respondent. The delusion under which the intestate labored as to his family was sufficient to defeat his gifts to defendant. (Stanton v. Weatherwax, 16 Barb. 259; Seamen's Friend Soc. v. Hopper, 33 N. Y. 619; Banks Goodfellow, L. R., 5 Q. B. 549; 8 Am. Rep. 185, note; Johnson v. Moore's Heirs, 1 Litt. 272; Lucas v. Parsons, 24 Ga. 640; Boyd v. Elby, 8 Watts, 70; Cotton v. Ulmer, 6 Am. Rep. 703; Lathrop v. Am. B'd of Foreign Missions, 67 Barb. 590.) The fact that the defendant is a charitable. corporation, and received the money and paid it out for charitable purposes, without any knowledge or notice of the intestate's insanity (if such had been the fact) does not exempt it from liability to refund the money. (Riggs v. Am. Tract Soc., 19 Hun, 481; 84 N. Y. 330; Doty v. Willson, 47 id. 580; Hills v. Hills, 8 M. & W. 404; Blount v. Barrow, 4 Brown's Ch. 73.) Where the insanity is known to the other contracting party, or where he has information which would lead a prudent man to such knowledge, the con

Opinion of the Court, per DANFORTH, J.

tract will not be held valid. (Lincoln v. Buckmaster, 32 Vt. 752; Henry v. Fine, 23 Ark. 417; Lancaster B'k v. Moore, 78 Penn. St. 407; Matthiessen, etc., Co. v. McMahon, 38 N. J. L. 536; Moss v. Tribe, 3 F. & F. 297; Bevan v. McDonnell, 10 Exch. 184; Crawford v. Scovell, 94 Penn. St. 48.) In this view it is immaterial whether the defendant can be placed in statu quo or not. (Crawford v. Scovell, 94 Penn. Str. 48; 39 Am. Rep. 766.) Neither the administrator nor the widow had the power to affirm or to disaffirm the contract. with defendant. (Jefford v. Ringgold, 6 Ala. 544; Shropshire v. Burns, 46 id. 108; Nelson v. Eaton, 1 Redf. 498; 2 Hilliard on Real Property, 431; Zouch v. Persons, 3 Burr. 1794; Bozeman v. Browning, 31 Ark. 364.) On the question of mental condition, whether raised as to unsoundness or undue influence, the conduct and declarations of the testator, both before and after execution of his will, are competent to show capacity or incapacity, if they tend to show its existence at the time of execution, but not otherwise. (Abbott's Trial Ev. 115; Waterman v.. Whitney, 11 N. Y. 157; Kinne v. Kinne, 9 Conn. 104; Shaler v. Bumstead, 99 Mass. 112; Boylan v. Meeker, 4 Dutch. 274.) It was proper for the witness to state how his conduct and language impressed him at the time, whether sane or insane, rational or irrational. (Abbott's Trial Ev. 117, 118; Clapp v. Fullerton, 34 N. Y. 190; Hewlett v. Wood, 55 id. 634.)

DANFORTH, J. On a former occasion we were satisfied that upon the allegations of the complaint a recovery might be had. (84 N. Y. 330.) The facts then admitted to be true are now established by the finding of a jury. A verdict has displaced the demurrer. In order to succeed, therefore, the appellant must show that an error of law was committed upon the trial, either in receiving evidence or in submitting it to the jury as sufficient for their consideration. Upon the complaint there was but one question, whether at the time of his transactions with the defendant, Ira Riggs, the intestate, was of unsound. mind. The trial was so conducted, however, and the case given

Opinion of the Court, per DANFORTH, J.

to the jury in such manner, as to involve two issues: first, his competency to make the donations stated in the complaint, and if incompetent, then as the gifts were in fact executed, second, whether the defendant received them with knowledge of his condition, or with such notice as put it on inquiry in regard thereto.

The donations were made in 1871, 1872 and January, 1874, amounting in all to $4,000. Mr. Riggs died in March, 1874, at the age of eighty-two years. As to his inental condition the evidence was all one way. None was offered by the defendant, and that given by the plaintiff stood uncontradicted. It tended to show that for many years before his, death, he was of eccentric habits and manners, but had always had the management of his own affairs; that at the time of the gifts in question, and for a long time before, and until his death, he was the subject of insane delusions in regard to his wife and children. He entertained the belief that there was a conspiracy between them to break up his family, destroy his authority over them, deny to him obedience and regard, and in that respect as he said, "rebel against the laws of God and man. He cherished the idea that they had combined to injure him personally, in reputation and in property and even to poison him to death, that they were his enemies and very bad people, and because of this, that they were not proper recipients of any of his estate. That he was sincere in his belief of these things, and that there was no foundation for that belief, might well be inferred from the testimony. It was also sufficient in the estimation of the trial judge and the General Term.

Upon the second proposition there was evidence. It tended to show that with knowledge of the donor's feelings toward his family, and his apprehensions that any will he might make which diverted his property from them, would be successfully contested on account of his incapacity, an agent of the defendant (Mr. C.) advised him that he could dispose of his property during his life-time, and that "it was better to do so than to let it remain as a source of litigation after his death." Mr. C. himself testified that in the summer of 1871, Riggs told

Opinion of the Court, per DANFORTH, J.

him he had "given by will a portion of his property to the defendant, but apprehended his children would try to break his will, or would break it, and he wanted to fix it in some way so they would not succeed." The witness adds, "I asked, if such was his fear, why not give what he intended to give during his life-time. He said he needed the use of the money." Then the agent suggested that the defendant would rather receive what he intended to give, and pay interest on it during his life-time, than run the risk of a litigation. They had other interviews and in some of them Mr. Riggs brought up his family matters; Mr. C. says, "I cannot tell whether he did so in every interview, or in which. He spoke of them as disobedient - the children." The witness cut short his visits when Riggs began to talk of them, and has since tried to forget what he said. "His words," as the witness testifies, "were disagreeable and he did not wish to retain them," or "that they should leave any impression upon his mind." He did, however, discover peculiarities in Mr. Riggs, and "got the impression," he says, "that they indicated a morbid condition of mind in regard to his feelings toward his family" an "unhealthy" and perhaps a "diseased condition," and whether he had that impression on the first visit, he adds, "I do not say, nor that I did not." There is more evidence bearing upon this point, and much more upon the first enough upon both for the attention of the jury, and upon which they were justified in finding unsoundness of mind on the part of the donor, and that the defendant both knew and took advantage of it. It would have been error, therefore, for the trial judge to have taken the case from them. But his charge was very favorable to the defendant. He made it the law of the case that the plaintiff could not recover unless, first, Riggs was at the time of the transaction, of unsound mind; second, that the defendant's agent had notice of his condition; and he told the jury that the plaintiff could not recover if either proposition was found in favor of the defendant. If the verdict had been the other way, the plaintiff might have had cause for complaint as to the