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of their tutor, father or guardian (t). If he or she hath attained the last day of fourteen or twelve years, the testament by him or her made in the very last day of their several ages aforesaid, is as good and lawful as if the same day were already then expired (u). Likewise, if after they have accomplished these years of fourteen or twelve, he or she do expressly approve of the testament made in their minority, the same by this new Will and declaration is made strong and effectual (v). But the mere circumstance of an infant having lived some time after the age when he became capable of making a Will, cannot, without republication, give validity to one made during his incapacity (11).

An idiot, that is, a fool or madman from his nativity who never has any lucid intervals (, is incapable of making a Will. Such a one is described to be a person who cannot number twenty, tell the days of the week, does not know his own father or mother, his own age, &c. (y). But these, though they may be evidences, yet they are too narrow, and conclude not always (2): for whether idiot or not is clearly a question of fact referrible to the individual circumstances of each particular case. If an idiot should make his testament so well and wisely in appearance that the same may seem rather to be made by a reasonable man than by one void of discretion, yet this testament is void in law (a).

One who is deaf and dumb from his nativity is, in presumption of law, an idiot, and therefore incapable of making a Will; but such presumption may be rebutted, and if it sufficiently appears that he understands what a testament means, and has a desire to make one, then he may by signs

Deaf and

(t) Swinb. Pt. 2, s. 2, pl. 6. Bac. Abr. Wills, B. 1.

(u) Swinb. Pt. 2, s. 2, pl. 7. Herbert v. Torball, Sid. 162. Com. Dig. Devise, H. 2, Godolphin, Pt. 1, c. 8, s. 1. Bac. Abr. Wills, B. 2.

(0) Ibid.

(w) Herbert v. Torball, 1 Sid. 162. Swinb. Pt. 2, s. 2, pl. 5.

(x) i Hale, P. C. 29. Bac. Abr. Idiots, &c. A. 1. Beverley's Case, 4 Co. 124, b.

(y) 1 Hale, P. C. 29. Bac, Abr. Idiots, &c. A. Swinb. Pt. 2, s. 4.

(-) 1 Hale, P. C. 29.

(a) Swinb. Pt. 2, s. 4, pl. 5, 7. Bac. Abr. Wills, B. 12.

and tokens declare his testament (b). One who is not deaf and dumb by nature, but being once able to hear and speak, if by some accident he loses both his hearing and the use of his tongue, then in case he shall be able to write, he may with his own hand write his last Will and Testament (c). But if he be not able to write, then he is in the same case as those which be both deaf and dumb by nature, i. e. if he have understanding he may make his testament by signs, otherwise not at all (d). Such as can speak and cannot hear, they may make their testaments, as if they could both speak and hear, whether that defect came by nature or otherwise (e). Such as be speechless only, and not void of hearing, if they can write, may very well make their testament themselves by writing: if they cannot write, they may also make their testaments by signs, so that the same signs be sufficiently known to such as then be present (f).

It is laid down in the old Text Books of the Ecclesiastical Blind persons. Law, that although he that is blind may make a nuncupative testament (g), by declaring his Will before a sufficient number of witnesses; yet that he cannot make his testament in writing, unless the same be read before witnesses, and in their presence acknowledged by the testator for his last Will (h): And that, therefore, if a writing be delivered to the testator, and he not hearing the same read, acknowledged the same for his Will, this would not be sufficient; for it may be that if he should hear the same he would not own it (i). And the Civil Law expressly required that the Will should be read over to the testator, and approved by him, in the presence of all the subscribing witnesses. But (6) Swinb. Pt. 2, s. 4, pl. 2.

(e) Ibid. Godolph. Pt. 1, c. 11. 4 Burn. E. (f ) Swinb. Pt. 2, s. 10, pl. 4. L. 60. See also Dickenson v. Godolph. Pt. 1, c. 11., Blisset, 1 Dick. 268 ; and the (9) See post, Ch. II. $ VI. as to judgment of Wood, V. C., in Har- the restrictions on nuncupative rod v. Harrod, 1 Kay & J. 4, 9. Wills.

(c) Swinb. Pt. 2, s. 10, pl. 2. (h) Swinb. Pt. 2, s. 11. Godolph. Godolph. Pt. 1, c. 11.

Pt. 1, c. 11. (d) Swinb. Pt. 2, s. 10, pl. 2. (i) Ibid.

See also Barton e'. Godolph. Pt. 1, c. 11.

Robins, 3 Phillim. 455, n. (b).

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Persons who cannot read.

in England this strictness is not required, and it is sufficient if there is satisfactory proof before the Court of the testator's knowledge and approval of the contents of the Will which he executed (k): And it is not necessary to produce evidence that the identical paper, which the testator executed as his Will, was ever read over to him (1).

And what precautions are necessary for authenticating a blind man's Will, seem in like degree requisite in the case of a person who cannot read. For though the law in other cases may presume, that the person who executes a Will knows and approves of the contents thereof; yet that presumption ceases, where, by defect of education, he cannot read or by sickness he is incapacitated to read the Will at that time (m).

A lunatic, that is, a person usually mad, but having intervals of reason (n), during the time of his insanity, cannot make a Testament, nor dispose of any thing by Will (o). And “so strong is this impediment of insanity of mind, that if the testator make his Testament, after his furor has overtaken him, and while as yet it possesses his mind, although the furor after departing or ceasing, the testator recover his former understanding, yet does not the Testament made during his former fit recover any force or strength thereby" (p).

If a party impeach the validity of a Will on account of a supposed incapacity of mind in the testator, it will be incumbent on such party to establish such incapacity by the



(k) 4 Burn, E. L. 60. Moore Barton v. Robins, 3 Phillim. 455, v. Paine, 2 Cas. temp. Lee, 595. n. (b). See post, Pt. 1. Bk. IV. The single oath of the writer has

Ch. III. sv. been allowed sufficient by the Court (n) Beverley's case, 4 Co. 124, b. of Delegates to prove the identity (o) Swinb. Pt. 2, s. 3. Godolph. of the Will: Ibid.

Pt. 1, c. 8, s. 2. (1) Fincham v. Edwards, 3 Curt. (P) Swinb. Pt. 2, s. 3, pl. 2. Go63: affirmed on Appeal, 4 Moo. dolph. Pt. 1, c. 8, s. 2. But a Will P. C. 198. See also Longchamp is not revoked by the subsequent v. Fish, 2 N. R. 415. Post, Pt. I. insanity of the testator: Swinb. Bk. iv. Ch. III. & v.

Pt. 11, s. 3, pl. 3. 4 Co. 61, b. (m) 4 Burn's Eccles. Law, p. 61. Post, Pt. 1. Bk. II. Ch. III. $ v.


clearest and most satisfactory proofs (9). The burthen of

q proof rests upon the person attempting to invalidate what, on its face, purports to be a legal act (r). Sanity must be

. presumed till the contrary is shown (s). Hence if there is no evidence of insanity at the time of giving the instructions for a Will, the commission of suicide, three days after, will not invalidate the instrument by raising an inference of previous derangement (t).

If a lunatic person have clear or calm intermissions, Will made (usually called lucid intervals), then during the time of such during a. lucid

: quietness and freedom of mind, he may make his Testament, appointing executors, and disposing of his goods at pleasure (u). “If you can establish,” said Sir Wm. Wynne, transfer in

such case of in the case of Cartwright v. Cartwright (.r) “that the party onus probandi. afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved is sufficient, and the general habitual insanity will not affect it; but the effect of it is this, it inverts the order of proof and of presumption; for until proof of an habitual insanity is made, the presumption is that the party agent, like all human creatures, was rational; but where an habitual insanity, in the mind of the person who does the act, is established, there the party who would take advantage of an interval of reason must prove it" (y).

But although the law recognizes acts done during such

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(9) The law seems unsettled as to how far, in cases of alleged unsoundness of mind, hereditary constitutional insanity may be pleaded. Frere v. Peacocke, 3 Curt. 664.

(r) 2 Phill. Ev. 293, 7th Edit.

(8) Groom v. Thomas, 2 Hagg. 434.

(1) Burrows v. Burrows, 1 Hagg. 109. See also Hoby v. Hoby, 1 Hagg. 146.

(u) Swinb. Pt. 2, s. 3, pl. 3. Godolph. Pt. 1, c. 8, s. 2. Wentw. e. 1, p. 33, 14th ed. Hall v. War

(y) See also the same doctrine laid down by Lord Thurlow in Attorney-General v. Parnther, 3 Bro. C. C. 443, and Sir W. Grant in Hall v. Warren, 9 Ves. 611. See also Swinb. Pt. 2, s. 3, pl. 7, where it is said, that if it be proved that the testator was once mad, the law presumeth him to continue still in

What is suffi.

intervals as valid, yet it is scarcely possible to be too cient proof of a lucid interval. strongly impressed with the great degree of caution neces

sary to be observed in the examining the proof of a lucid interval (z); and such proof is matter of extreme difficulty, for this, among other reasons, viz., that the patient is, not unfrequently, rational to all outward appearance without any real abatement of his malady (a). On the other hand if the deceased was subject to attacks producing temporary incapacity, and was at other times in full possession of his mental powers, such attacks may naturally create in those who only happened to see him when subject to them, a strong opinion of his permanent incapacity. These considerations, while they tend to reconcile the apparent contradictions of witnesses, render it necessary for the Court to rely but little upon mere opinion, to look at the grounds upon which opinions are formed, and to be guided in its own judgment by facts proved, and by acts done, rather than by the judgments of others (b).

In Ex parte Holyland (c) Lord Eldon observed, that in the case of the Attorney - General v. Parnther, “Lord Thurlow said, that where lunacy is once established by clear evidence, the party ought to be restored to as perfect a state of mind as he had before ; and that should be proved by lence as clear and satisfactory. I cannot agree to

that case, unless the contrary be
proved. See also Godolph. Pt. 1,
c. 8, s. 2. White v. Driver, 1
Phillim. Rep.88. Groom v. Thomas,
2 Hagg. 434. Waring v. Waring,
6 Moo. P. C. 341, S. C. 5 Notes of
Cas. 296. 6 Notes of Cas. 388.
Grimani v. Draper, Ibid. 418.
Johnson v. Blane, Ibid. 442. Fowlis
v. Davidson, Ibid. 461, 474, But
where the attesting witnesses, dis-
interested medical men, speak
strongly to sanity, the Court will
not set aside a Will on proof by in-
terrogatories, but without plea, that
the deceased many years before
had been under an insane delusion:
Ke ?'. Church, 3 Hagg. 273.

(z) By Sir John Nicholl in White v. Driver, 1 Phillim. Rep. 88.

(a) By Sir John Nicholl in Brogden v. Brown, 2 Add. 445, and in Ayrey v. Hill, 2 Add. 210.

(6) By Sir John Nicholl in Kindleside v. Harrison, 2 Phillim. Rep. 459. See also expressions to the same effect by the same learned judge in Evans v. Knight, 1 Add. 239. Wood v. Wood, 1 Phillim.363. Wheeler v. Alderson, 3 Hagg. 605; by Tindal, C. J., in Tatham v. Wright, 2 Russ. & M. 21, 22. And by Lord Langdale, in Steed v. Calley, 1 Keen, 620.

(C) 11 Ves. 11.


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