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Jan. 11 and May 13.

1870 July 6.


[L.R.] 5 Q.B. 549





Attorneys for Plaintiffs: J. G Waugh (Manisty, Q.C., Aspinall, Q.C., and Kemplay, for the plaintiff.

Attorneys for the Defendants; Nethersole and Speechley (Holker, Q.C., and C. Hutton) for the defendant.




ESTATE ADMINISTRATION – WILLS:- Validity of Will and Testamentary Capacity – Partial Unsoundness of Mind – Mental Delusions

HEALTHCARE AND LAW:- Mental health and disposition of property by way of will – A will made during period of partial or recurring mental unsoundness or delusion – Implication for justice administration

CHILDREN AND WOMEN LAW: Young people/Minor and inheritance – Validity of will devising the whole of a testator estate to a minor who died underage – Effect r



Partial unsoundness, not affecting the general faculties, and not operating on the mind of a testator in regard to testamentary disposition, is not sufficient to render a person incapable of disposing of his property by will.



At a trial as to the validity of a will, in favour of the testator’s niece, it appeared that the testator made the will in 1863; he had been confined as a lunatic, for some months in 1841; and he remained subject to delusions, that he was personally molested by a man who had long been dead, and that he was pursued by evil spirits whom he believed to be visibly present; and these delusions were shewn to have existed between 1841 and the date of the will, and also between that date and his death in 1865. As to the testator’s general capacity to manage his affairs, the evidence was contradictory; but it was admitted that at times he was incapable of making a will. The jury were directed to consider whether, at the time of making the will, the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it; and they were further directed that the mere fact of the testator’s being able to recollect things, or to converse rationally on some subjects, or to manage some business, would not be sufficient to shew he was sane; while, on the other hand, slowness, feebleness, and eccentricities would not be sufficient to shew he was insane; and that the whole burden of shewing that the testator was fit at the time was on the party claiming under the will.


Held –  That the direction was practically right; for that it was immaterial whether the delusions remained latent or not at the time, if the testator was otherwise competent to make a will, as neither of the delusions – the dead man being in no way connected with the testator – had, or could have had, any influence upon him in disposing of his property.


EJECTMENT for fifteen messuages or dwelling houses situate at Keswick.



The defendant defended for the whole. At the trial before Brett, J., at the Cumberland spring assizes, 1869, it appeared that the action was brought by the plaintiff, as heir at law of John Banks, deceased, to try the validity of a will made by the latter, on the 28th of December, 1863, in favour of Margaret Goodfellow.


The testator had an only sister of the whole blood; but she was dead at the time the will was made, and her only child, the said Margaret Goodfellow, lived with him, and was, his heir at law. The testator had also an only brother of the half blood, Jacob Banks, who was also then dead; he was father of John Banks, the plaintiff, and of several daughters. The testator died, unmarried, on the 28th of July, 1865. The will devised the whole of the testator’s real and personal property to Margaret Goodfellow absolutely. She died unmarried, and under age, in 1867. The defendant was her half brother and heir at law.


The question at the trial was the capacity of the testator to make a will on the 2nd of December, when instructions given for the will were provisionally executed as a will, or on the 28th of December, 1863, when the formal will was executed. The evidence was very long and contradictory on the point; but it was admitted that at times the testator was incapable of making a will.


The following is a copy of the direction of the learned judge to the jury:- “It is admitted that from time to time the testator was so insane that he was incapable of making a will. The question is whether, on the 2nd of December, 1863, or on the 28th of December, 1863, or on both, the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it. The mere fact of his being able to recollect things, or to converse rationally on some subjects, or to manage some business, is not sufficient to shew he was sane. On the other hand, slowness, feebleness, and eccentricities, are not sufficient to shew he was insane. The whole burden of shewing that the testator was fit at the time is on the defendant in this case. In order to determine whether the testator had a lucid interval when the wills or either of them were made, it may be important to consider what was the extent and nature of his admitted general insanity.”


The jury found a verdict in favour of the defendant, saying the will was a good and valid will.  A rule was obtained for a new trial on the ground of misdirection, and that the verdict was against the weight of evidence. The facts of the case, the arguments of counsel, and the cases cited, fully appear in the judgment of the Court.


Jan. 11 and May 13.

Manisty, Q.C., Aspinall, Q.C., and Kemplay,for the plaintiff.

Holker, Q.C., and C. Hutton, for the defendant.




Cur. adv. vult.

July 6.

The judgment of the Court (Cockburn, C.J. , Blackburn, Mellor , and Hannen, JJ. ) was delivered by –  COCKBURN, C.J.

This is an action brought by the plaintiff, as heir at law of John Banks, to try the validity of a will made by the latter in favour of one Margaret Goodfellow; of whom, she having died since the decease of the testator, the defendant is the heir. The question in issue at the trial was the capacity of the testator to make a will.


Instructions for the will, taken by the attorney who prepared it, were signed by the testator and attested by witnesses in his presence, on the 2nd of December, 1863; the will, formally prepared from such instructions, was duly executed on the 28th of the same month. The question is, whether on both or either of those days the testator was of sound mind, so as to be capable of making a will.


It is a fact beyond dispute that the testator, John Banks, had at former times been of unsound mind. He had been confined, as far back as the year 1841, in the county lunatic asylum; discharged, after a time, from the asylum, he remained subject to certain fixed delusions. He had conceived a violent aversion towards a man named Featherstone Alexander, and notwithstanding the death of the latter some years ago, he continued to believe that this man still pursued and molested him; and the mere mention of Featherstone Alexander’s name was sufficient to throw him into a state of violent excitement. He frequently believed that he was pursued and molested by devils or evil spirits, whom he believed to be visibly present. Besides these delusions, which were spoken to by two witnesses whose evidence was above suspicion, the one a medical man who attended him from 1856 to the end of 1862, the other the clergyman of the parish in which the testator resided, there was a body of evidence which, if believed, was strong to establish a case of general insanity. The jury, however, found in favour of the will, and therefore must have believed this evidence to be greatly exaggerated, or must have come to the conclusion that the will was made during a lucid interval.


From September, 1863, he had a succession of epileptic fits, and a blister was applied to his head, and the medical man who attended him throughout this period, deposed that his mental power, such as it was, suffered from the fits, and that he considered him insane, and incapable of transacting business during the whole time.


On the other hand, it appeared that the testator managed his own money affairs (which, however, were on a limited scale), and was careful of his money. According to the evidence of a witness named Tolson, who had acted as his agent in receiving the rents of some cottage property at Keswick, amounting to about 80l. a year, the testator had not only always shewed himself capable of transacting business with him, but had also on the last occasion of Tolson’s coming to pay the rents, suggested to him to take a lease of the cottages in question, so as to relieve him (the testator) from all risk or trouble in the matter. He had also desired Tolson, when he came to pay over the next half-year’s rents, to bring with him a Mr. Ansell, an attorney of Keswick, as he wanted to see him about making a will. On the 2nd of December, 1863, Tolson went to Arkleby, where the testator lived, taking Ansell with him. On their arrival, the testator, according to the statement of Ansell and Tolson, told Ansell he wished to make his will. He fetched from his room a will which he had made in 1838, in favour of his sister, who had since died, and said he wished to give all his property to his niece, Margaret Goodfellow, in the same way. On Mr. Ansell asking who should be the executors, the testator turned to his niece, who was present, and asked who she thought should be executors; whereupon she desired that Tolson should be one, and asked who should be the other, when the name of the other executor, Thirlwall, was suggested by a person present, and assented to by the testator. The instructions thus received by Ansell were put down by him on paper, and having been read over to the testator, were, by the desire of Ansell, signed by him, and his signature was formally attested by two witnesses, so as to make the paper a sufficient and valid will, although it was intended that a more formal document should afterwards be prepared and executed; the reason given by Ansell for such signing and attestation of the instructions being, that he always pursued this course when his clients lived at a distance from him, and time would be required between the taking the instructions and the final completion of the will. The distance between Keswick and Arkleby is about twenty miles, and the road was said to be bad.


After the matter of the will had been disposed of, a conversation took place concerning the proposed lease to Tolson. The testator calculated the amount of the rents, and finding that they came to 80l., offered Tolson a lease of the cottages for seven years, at a rent of 76l. a year. This being agreed to by Tolson, Ansell was instructed to prepare a lease on these terms; and the instructions, having been reduced to writing, were signed by the testator and Tolson. After this, Tolson proceeded to settle with the testator for the rents received by him, which amounted to 40l. 7s. 4d. Of this Tolson produced 29l. in cash, and offered his cheque for the remainder, but the testator observed that a cheque would be of no use to him, as there was no bank near, and desired Tolson to pay the balance into a bank at Keswick, at which the testator had an account. After this, a conversation ensued with a Mrs. Routledge, at whose house the testator lodged, as to the amount which he should pay her weekly for his board and lodging combined, which, if truly reported, tended strongly to shew that he was then capable of managing his affairs.


On the 28th of December Tolson took over the will and lease, which had been prepared by Ansell, to the testator, who, having read them two or three times, said they were all right, after which both instruments were executed by him, and the will was duly attested.


The testator lived till July, 1865. His niece, Margaret Goodfellow, survived him, but died in 1867, under age and unmarried. She was his heir at law. He had other nephews and nieces, to whom he is said to have been attached. The effect of the will, if valid, is, that the property goes to the defendant, who is no relation in blood to the testator, as the heir at law of Margaret Goodfellow, instead of to any relative of the testator. This possible consequence of Margaret Goodfellow dying without issue and intestate, does not, however, appear to have presented itself to the mind of any of the parties at the time of making the will.


Upon this evidence, the learned judge left it to the jury to say, “whether, on the 2nd of December, 1863, or on the 28th of December, 1863, or on both, the testator was capable of having such a knowledge and appreciation of facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it;” the learned judge telling the jury that “the mere fact of his being able to recollect things, or to converse rationally on some subjects, or to manage some business, would not be sufficient to shew he was sane; while, on the other hand, slowness, feebleness, and eccentricities would not be sufficient to shew he was insane;” with the further direction that “the whole burden of shewing that the testator was fit at the time was on the defendant.” The jury returned a verdict for the defendant, saying that they found that the will “was a good and valid will.”


The present rule was applied for and obtained on two grounds, first, that the judge misdirected the jury; secondly, that the verdict was against the weight of the evidence. The alleged misdirection is that the learned judge, in leaving to the jury the question whether at the time of making the will the testator was free from delusions, did not proceed to tell them that though the delusions, under which the testator had undoubtedly before laboured, might not have been present to his mind at the time of making the will, yet, if they were latent in his mind, so that, if the subject had been touched upon, the delusions would have recurred, he was of unsound mind and therefore incapable of making a will.


We must take it, for the present purpose, as a fact, that the testator, though generally of weak intellect, was able to manage his own affairs, and, apart from the delusions under which he laboured, was, at all events at the time of executing one or both of the testamentary instruments in question, of sufficient testamentary capacity. We must also take it that no delusion manifested itself at the time of making the will. On the other hand, there is ample proof that the delusions existed in the interval between the making of the will and the death of the testator, as they had done before; and it is therefore quite possible that these delusions may have remained, at the time of making the will, uncured and latent in the testator’s mind, and capable of being evoked and reproduced at any moment, if anything had occurred to lead his thoughts to the subject.


The inquiry not having been directed to this point, it is quite possible that all that the jury meant in finding in the affirmative of the question whether the testator was “free from delusions” at the time of making his will, was that the delusions were not present to his consciousness, not that they were eradicated from his mind; and that if the question had been specifically put to them whether the delusions still remained latent in the testator’s mind and his mind was to the extent of these delusions unsound, they would have found in the affirmative.


It therefore becomes necessary to consider how far such a degree of unsoundness of mind as is involved in the delusions under which this testator laboured would be fatal to testamentary capacity; in other words, whether delusions arising from mental disease, but not calculated to prevent the exercise of the faculties essential to the making of a will, or to interfere with the consideration of the matters which should be weighed and taken into account on such an occasion, and which delusions had in point of fact no influence whatever on the testamentary disposition in question, are sufficient to deprive a testator of testamentary capacity and to invalidate a will.


We must assume, for the present purpose, that the testator laboured under the insane delusions ascribed to him; but, on the other hand, that these delusions had not, nor were calculated to have, any influence on him in the disposal of his property; and that, irrespective of these delusions, the state of his mental faculties was such as to render him capable of making a will. For, whatever may have been the evidence as to general insanity, the verdict of the jury, which there was ample evidence to support, and in which the learned judge who presided at the trial states that he concurs, establishes that at the time of making the will, irrespectively of the delusions referred to, the testator was sufficiently in possession of his faculties.


The question whether partial unsoundness, not affecting the general faculties, and not operating on the mind of a testator in regard to the particular testamentary disposition, will be sufficient to deprive a person of the power of disposing of his property, presents itself here for judicial decision, so far as we are aware, for the first time. It is true that, in the case of Waring v. Waring[1], the Judicial Committee of the Privy Council, and, in the more recent case of Smith v. Tebbitt[2], Lord Penzance, in the Court of Probate, have laid down a doctrine, according to which any degree of mental unsoundness, however slight, and however unconnected with the testamentary disposition in question, must be held fatal to the capacity of a testator. But in both these cases, as we shall presently shew, the wide doctrine embraced in the judgment was wholly unnecessary to the decision, and we therefore feel ourselves warranted, and indeed bound, to consider the question as one not concluded by authority, and on which we are called upon to form our own judgment. The question is one of equal importance and difficulty, and we have given it our best consideration.


The text-writers throw no light upon the point. They content themselves with stating in general terms that to be capable of making a will a man must be of sound disposing mind and memory, and that persons non compotes cannot make a will; but they are silent as to the degree of mental disturbance which will amount to a want of disposing mind and memory. The cases prior to Waring v. Waring, in which the law on the subject of mental unsoundness, as affecting the capacity to make a will, has come into question, are by no means numerous. It may be as well to pass them in review.


In Combe’s Case[3] it is said to have been agreed by the judges, “that sane memory for the making of a will is not always where the party can in some things answer with sense, but he ought to have judgment to discern and to be of perfect memory, otherwise the will is void.” So, again, in the Marquis of Winchester’s Case[4], “By the law, it is not sufficient that the testator be of memory, when he makes the will, to answer familiar and usual questions, but he ought to have a disposing memory, so as to be able to make a disposition of his estate with understanding and reason.” In the case of Greenwood v. Greenwood[5], an action brought to recover estates under a will, the validity of which was disputed, the principal indication of insanity relied on being a strange aversion on the part of the testator towards his only brother, his heir at law, and a groundless suspicion of the latter having attempted to poison him, Lord Kenyon, in charging the jury, said: “I take it a mind and memory competent to dispose of property, when it is a little explained, perhaps may stand thus:- having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wished to dispose of it. If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.” In other cases, such as the well-known case of Dew v. Clark[6], the insane delusion had a direct bearing on the provisions of the will. In such cases, the delusion being once proved, and its connection with the will being manifest, there could be no difficulty in setting aside the will. Cases of this description afford little or no assistance towards the solution of the question before us. Again, other cases occurring prior to the case of Waring v. Waring[7], such as The Attorney General v. Parnther[8] and Cartwright v. Cartwright[9], had reference to the effect to be given to a lucid interval at the time of making the will, rather than to the degree of mental unsoundness which would constitute testamentary incapacity. The judgment in the latter case is, however, not unworthy of attention. The case was a remarkable one, from the fact that the will had been made by a person actually confined in a lunatic asylum, and who was undoubtedly insane both before and after the making of the will; nevertheless it was upheld. Sir William Wynne, the then Judge of the Prerogative Court of Canterbury, in giving judgment, uses language tending strongly to shew that, in his opinion, the rationality of the act done affords an effectual test of the mental capacity of the party doing it. He says[10]: “I think the strongest and best proof that can arise as to a lucid interval is that which arises from the act itself: that I look upon as the thing to be first examined, and if it can be proved and established that it is a rational act rationally done, the whole case is proved. What can you do more to establish the act? Because, suppose you are able to shew that the party did that which appears to be a rational act, and it is his own act entirely, nothing is left to presumption in order to prove a lucid interval. Here is a rational act rationally done. In my apprehension, where you are able completely to establish that, the law does not require you to go further, and the citation from Swinburne states it to be so. The manner he has laid it down is (it is in the part[11] in which he treats of what persons may make a will): ‘If a lunatic person, or one that is beside himself at some times, but not continually, make his testament, and it is not known whether the same were made while he was of sound mind and memory or no, then, in case the testament be so conceived as thereby no argument of phrensy or folly can be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions; and so the testament shall be adjudged good, yea, although it cannot be proved that the testator useth to have any clear and quiet intermissions at all, yet, nevertheless, I suppose that if the testament be wisely and orderly framed, the same ought to be accepted for a lawful testament.’ Unquestionably,” Sir William Wynne continues, “there must be a complete and absolute proof the party who had so framed it did it without any assistance. If the fact be so that he has done as rational an act as can be, without any assistance from another person, what there is more to be proved, I don’t know, unless the gentlemen could prove by any authority, or law, what the length of the lucid interval is to be, whether an hour, a day, or a month. I know no such law as that. All that is wanting is, that it should be of sufficient length to do the rational act intended. I look upon it, if you are able to establish the fact that the act done is perfectly proper, and that the party who is alleged to have done it was free from the disorder at the time, that is completely sufficient.”


Without going to the length of adopting to its full extent what is here said as to the effect of the rational character of the will, or at all saying that effect can be given to the rationality of the disposition beyond that which is due to it as evidence of the sanity of the testator, we advert to this case and the judgment of Sir William Wynne as shewing that a more indulgent view of the effect of insanity, as affecting testamentary incapacity, was the taken than has latterly prevailed.


We come now to the case of Waring v. Waring[12] since followed by that of Smith v. Tebbitt[13] in which the doctrine now contended for on behalf of the plaintiff was for the first time laid down. It may be shortly stated thus: To constitute testamentary capacity, soundness of mind is indispensably necessary. But the mind, though it has various faculties, is one and indivisible. If it is disordered in any one of these faculties, if it labours under any delusion arising from such disorder, though its other faculties and functions may remain undisturbed, it cannot be said to be sound. Such a mind is unsound, and testamentary incapacity is the necessary consequence.


As has already been observed, neither in Waring v. Waring nor in Smith v. Tebbitt, was the doctrine thus laid down in any degree necessary to the decision. Both these were cases of general, not of partial, insanity; in both the delusions were multifarious, and of the wildest and most irrational character, abundantly indicating that the mind was diseased throughout. In both there was an insane suspicion or dislike of persons who should have been objects of affection; and, what is still more important, in both it was palpable that the delusions must have influenced the testamentary disposition impugned. In both these cases, therefore, there existed ample grounds for setting aside the will without resorting to the doctrine in question. Unable to concur in it, we have felt at liberty to consider for ourselves the principle properly applicable to such a case as the present. We do not think it necessary to consider the position assumed in Waring v. Waring, that the mina is one and indivisible, or to discuss the subject as matter of metaphysical or psychological inquiry. It is not given to man to fathom the mystery of the human intelligence, or to ascertain the constitution of our sentient and intellectual being. But whatever may be its essence, everyone must be conscious that the faculties and functions of the mind are various and distinct, as are the powers and functions of our physical organization. The senses, the instincts, the affections, the passions, the moral qualities, the will, perception, thought, reason, imagination, memory, are so many distinct faculties or functions of the mind. The pathology of mental disease and the experience of insanity in its various forms teach us that while, on the one hand, all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of the raving maniac, in other instances one or more only of these faculties or functions may be disordered, while the rest are left unimpaired and undisturbed; – that while the mind may be overpowered by delusions which utterly demoralize it and unfit it for the perception of the true nature of surrounding things, or for the discharge of the common obligations of life, there often are, on the other hand, delusions, which, though the offspring of mental disease and so far constituting insanity, yet leave the individual in all other respects rational, and capable of transacting the ordinary affairs and fulfilling the duties and obligations incidental to the various relations of life. No doubt when delusions exist which have no foundation in reality, and spring only from a diseased and morbid condition of the mind, to that extent the mind must necessarily be taken to be unsound; just as the body, if any of its parts or functions is affected by local disease, may be said to be unsound, though all its other members may be healthy, and their powers or functions unimpaired. But the question still remains, whether such partial unsoundness of the mind, if it leaves the affections, the moral sense, and the general power of the understanding unaffected, and is wholly unconnected with the testamentary disposition, should have the effect of taking away the testamentary capacity.


We readily concede that where a delusion has had, as in the case of Dew v. Clark[14], or is calculated to have had, an influence on the testamentary disposition, it must be held to be fatal to its validity. Thus if, as occurs in a common form of monomania, a man is under a delusion that he is the object of persecution or attack, and makes a will in which he excludes a child for whom he ought to have provided; though he may not have adverted to that child as one of his supposed enemies, it would be but reasonable to infer that the insane condition had influenced him in the disposal of his property. But, in the case we are dealing with, the delusion must be taken neither to have had any influence on the provisions of the will, nor to have been capable of having any; and the question is, whether a delusion, thus wholly innocuous in its results as regards the disposition of the will, is to be held to have the effect of destroying the capacity to make one.


The state of our own authorities being such as we have shown, we have turned to the jurisprudence of other countries, as on a matter of common juridical interest, to see whether we could there find any assistance towards the solution of the question. We have, however, derived but little advantage from the inquiry. The Roman law, the great storehouse of juridical science, is as vague and general on the subject as our own. The madman (furiosus), and the person of defective intelligence (mente captus), are declared incapable of making a testament; but as to what shall constitute madness or defectiveness of intelligence, sufficient to prevent the exercise of the testamentary right, the authorities are silent. The continental codes are equally general in their terms, simply providing, either that persons must be of sound mind to make a will, or that persons of unsound mind shall be disabled from doing so. The older writers appear not to have been alive to the distinction between total and partial unsoundness as affecting testamentary capacity. In recent times, however, the question has been mooted by eminent and distinguished jurists, but unfortunately with a marked discordance of opinion. M. Troplong, in his well-known work, “Le Droit Civil Expliquè”[15], and M. Sacase, in a treatise entitled “La Folie considèrèe dans ses rapports avec la Capacitè Civile”[16], have adopted the doctrine of the unity and indivisibility of the mind, and the consequent unsoundness of the whole if insane delusion anywhere exist. Writers equally entitled to respect have maintained the contrary view. Legrand du Saulle, in a very able work, entitled “La Folie devant les tribunaux”[17], contends that “hallucinations are not a sufficient obstacle to the power of making a will, if they have exercised no influence on the conduct of the testator, have not altered his natural affections, or prevented the fulfilment of his social and domestic duties; while, on the other hand, the will of a person affected by insane delusion ought not to be admitted if he has disinherited his family without cause, or looked on his relations as enemies, or accused them of seeking to poison him, or the like. In all such cases, where the delusion exercises a fatal influence on the acts of the person affected, the condition of the testamentary power fails: the will of the party is no longer under the guidance of reason, it becomes the creature of the insane delusion.” M. Demolombe, in his great work, the “Cours de Code Napoleon”[18], M. Castlenau, in his treatise, “Sur l’Interdiction des Aliènès,” and Hoffbauer, in his remarkable work on Medical Jurisprudence relating to Insanity, have maintained the doctrine that monomania, or partial insanity, not affecting the testamentary disposition, does not take away the testamentary capacity. Mazzoni, in a recent work, entitled “Istituzioni di diritto civile Italiano”[19], lays it down that “monomania is not an unsoundness of mind which absolutely and necessarily takes away testamentary capacity, as the monomaniac may have the perfect exercise of his faculties in respect of all subjects beyond the sphere of the partial derangement.”


None of these writers, however, have gone very deeply into the subject, or considered it with reference to the principles on which mental alienation should be held to form a ground for taking away testamentary capacity. The older jurists were content to say that an insane person was incapable of making a testament, because he has no mind, “quia mente caret,” as it is said in the Institutes[20]; or because he could not have a will, and therefore was incapable of declaring his ultimate will as to the disposal of his property – positions obviously unsatisfactory when the fact becomes recognized that a man may labour under harmless delusions, which leave the other faculties of his mind unaffected, and leave him free to make a disposition of his property uninfluenced by their existence. In our day the doctrine has sprung up of the unity and indivisibility of the mind, but the ground on which insanity should cause incapacity appears to have been overlooked in the reasoning on which it is founded. It is important to recall it.


The law of every civilized people concedes to the owner of property the right of determining by his last will, either in whole or in part, to whom the effects which he leaves behind him shall pass. Yet it is clear that, though the law leaves to the owner of property absolute freedom in this ultimate disposal of that of which he is thus enabled to dispose, a moral responsibility of no ordinary importance attaches to the exercise of the right thus given. The instincts and affections of mankind, in the vast majority of instances, will lead men to make provision for those who are the nearest to them in kindred and who in life have been the objects of their affection. Independently of any law, a man on the point of leaving the world would naturally distribute among his children or nearest relatives the property which he possessed. The same motives will influence him in the exercise of the right of disposal when secured to him by law. Hence arises a reasonable and well warranted expectation on the part of a man’s kindred surviving him, that on his death his effects shall become theirs, instead of being given to strangers. To disappoint the expectation thus created and to disregard the claims of kindred to the inheritance is to shock the common sentiments of mankind, and to violate what all men concur in deeming an obligation of the moral law. It cannot be supposed that, in giving the power of testamentary disposition, the law has been framed in disregard of these considerations. On the contrary, had they stood alone, it is probable that the power of testamentary disposition would have bee withheld, and that the distribution of property after the owner’s death would have been uniformly regulated by the law itself. But there are other considerations which turn the scale in favour of the testamentary power. Among those, who, as a man’s nearest relatives, would be entitled to share the fortune he leaves behind him, some may be better provided for than others; some may be more deserving than others; some from age, or sex, or physical infirmity, may stand in greater need of assistance. Friendship and tried attachment, or faithful service, may have claims that ought not to be disregarded. In the power of rewarding dutiful and meritorious conduct, paternal authority finds a useful auxiliary; age secures the respect and attentions which are one of its chief consolations. As was truly said by Chancellor Kent, in Van Alst v. Hunter[21], “It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities.” For these reasons the power of disposing of property in anticipation of death has ever been regarded as one of the most valuable of the rights incidental to property, while there can be no doubt that it operates as a useful incentive to industry in the acquisition of wealth, and to thrift and frugality in the enjoyment of it. The law of every country has therefore conceded to the owner of property the right of disposing by will either of the whole, or, at all events, of a portion, of that which he possesses. The Roman law, and that of the Continental nations which have followed it, have secured to the relations of a deceased person in the ascending and descending line a fixed portion of the inheritance. The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.


It is unnecessary to consider whether the principle of the foreign law or that of our own is the wiser. It is obvious, in either case, that to the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition. It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.


Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease; if insane suspicion, or aversion, take the place of natural affection; if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails, and that a will made under such circumstances ought not to stand. But what if the mind, though possessing sufficient power, undisturbed by frenzy or delusion, to take into account all the considerations necessary to the proper making of a will, should be subject to some delusion, but such delusion neither exercises nor is calculated to exercise any influence on the particular disposition, and a rational and proper will is the result; ought we, in such case, to deny to the testator the capacity to dispose of his property by will?


It must be borne in mind that the absolute and uncontrolled power of testamentary disposition conceded by the law is founded on the assumption that a rational will is a better disposition than any that can be made by the law itself. If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.


It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause – namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, “the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.”[22] “Non sani tantum,” says Voet in his Commentary on the Pandects[23], founding himself on the language of the Code, Book 6, tit. 23, l. 15, “sed et in agone mortis positi, seminece ac balbutiente linguâ voluntatem promentes, recte testamenta condunt, si modo mente adhuc valeant.”


This part of the law has been extremely well treated in more than one case in the American Courts.


In the case of Harrison v. Rowan[24], in the United States Circuit Court for the district of New Jersey, the law was thus laid down by the presiding judge: “As to the testator’s capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon [25]the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new.”


In the case of Den v. Vancleve the law was thus stated: “By the terms ‘a sound and disposing mind and memory’ it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned       and judged of, then he cannot be said to be of sound and disposing mind and memory.”


In the subsequent case of Stevens v. Vancleve[26] it is said: “The testator must, in the language of the law, be possessed of sound and disposing mind and memory. He must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigour of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator? as this: Had he a disposing memory? was he capable of recollecting the property he was about to bequeath; the manner of distributing it; and the objects of his bounty? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time he executed his will?”


This view of the law is fully adopted by the Court in the case of Sloan v. Maxwell[27], and is there stated to have been approved by Chancellor Vroom in a case as to the will of Tace Wallace, which, however, is not reported. It appears to have had the sanction of Chancellor Kent, in the case of Van Alst v. Hunter, already referred to.


In a case of Harwood v. Baker[28], before the Judicial Committee of the Privy Council, in which case a will had been executed by a testator on his deathbed, in favour of a second wife, to the exclusion of the other members of his family, he being in a state of weakened and impaired capacity from disease producing torpor of the brain, and rendering his mind incapable of exertion unless roused, Erskine, J., delivered the judgment of the Court in these terms: [29]“Their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property; and that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one; and more especially, when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration. And, therefore, the question which their Lordships propose to decide in this case is, not whether Mr. Baker knew, when he executed this will, that he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice of the disposition might cast down some light upon the question as to his capacity.”


From this language it is to be inferred that the standard of capacity in cases of impaired mental power is, to use the words of the judgment, the capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding. Why should not this standard be also applicable to mental unsoundness produced by mental disease?


It may be said that the analogy between the two cases is imperfect; that there is an essential difference between unsoundness of mind arising from congenital defect, or supervening infirmity, and the perversion of thought and feeling produced by mental disease, the latter being far more likely to give rise to an inofficious will than the mere deficiency of mental power. This is, no doubt, true, but it becomes immaterial on the hypothesis that the disorder of the mind has left the faculties, on which the proper exercise of the testamentary power depends, unaffected, and that a rational will, uninfluenced by the mental disorder, has been the result.


It is said, indeed, by those who insist that any degree of unsoundness should suffice to take away testamentary capacity, that where insane delusion has shewn itself, it is always possible, and indeed may be assumed to be probable, that a greater degree of mental unsoundness exists than has actually become manifest. But this view, which is by no means universally admitted, is unsupported by proof, and must be looked upon as matter of speculative opinion. It seems unreasonable to deny testamentary capacity on the speculative possibility of unsoundness which has failed to display itself, and which, if existing in a latent and undiscovered form, would be little likely to have any influence on the disposition of the will. No doubt, where the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should in the first instance be made against it. Where insane delusion has once been shewn to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong where the will is, to use the term of the civilians, an inofficious one, that is to say, one in which natural affection and the claims of near relationship have been disregarded. But where in the result a jury are satisfied that the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under such circumstances should not be upheld. Such an inquiry may involve, it is true, considerable difficulty, and require much nicety of discrimination, but we see no reason to think that it is beyond the power of judicial investigation and decision, or may not be disposed of by a jury directed and guided by a judge. In the case before us two delusions disturbed the mind of the testator, the one that he was pursued by spirits, the other that a man long since dead came personally to molest him. Neither of these delusions – the dead man not having been in any way connected with him – had, or could have had any influence upon him in disposing of his property. The will, though in one sense an idle one, inasmuch as the object of his bounty was his heir at law, and therefore would have taken the property without its being devised to her, was yet rational in this, that it was made in favour of a niece, who lived with him, and who was the object of his affection and regard. And we must take it on the finding of the jury that irrespectively of the question of these dormant delusions, the testator was in possession of his faculties when the will was executed.


Under these circumstances, we see no ground for holding the will to be invalid. If, indeed, it had been possible to connect the dispositions of the will with the delusions of the testator, the form in which the case was left to the jury might have been open to exception. It may be, as was contended on the part of the plaintiff, that in a case of unsoundness, founded on delusion, but which delusion was not manifested at the time of making the will, it is a question for the jury whether the delusion was not latent in the mind of the testator. But, then, for the reasons we have given in the course of this judgment, we are of opinion that a jury should be told, in such a case, that the existence of a delusion, compatible with the retention of the general powers and faculties of the mind, will not be sufficient to overthrow the will, unless it were such as was calculated to influence the testator in making it.


This, in effect, disposes of the question of misdirection. As, for the reasons we have given, we are of opinion that if the testator was, at the time of making the will, of capacity to make a will as defined by the learned judge, the existence of mental disease, if latent, so as to leave him free from the consciousness and influence of delusion, there having been a total absence of all connection between the delusion and the will, would not overthrow the will, it follows that there can have been, practically speaking, no misdirection in not leaving the question of latent delusion to the jury. Where delusions are of such a nature as is calculated to influence the testator in making the particular disposition, as was the case in Waring v. Waring, and in Smith v. Tebbitt, a jury would not in general be justified in coming to the conclusion that the delusion, still existing, was latent at the time, so as to leave the testator free from any influence arising from it; but in the present case the disposition was quite unconnected with the delusions, and consequently there is no reason to suppose that the omission to call the attention of the jury to this specifically can have affected the verdict.


Looking to the evidence given on the trial, and to the verdict of the jury, it appears to us that if this case were submitted to another jury, whatever they might find as to the existence of latent delusion, their decision must be in favour of the will as to the absence of all connection between the delusions and the disposition made by the testator. It would, consequently, be worse than useless to put the parties to the expense of a new trial, when in our judgment the only proper or possible result must be a second verdict establishing the will.


Rule discharged.


[1] 6 Moo. P. C. 341

[2] Law Rep. 1 P. AND D. 398

[3] Moore, 759; S.C. 8 Vin. Abr. 43, No. 22

[4] 6 Rep. 23

[5] 3 Curt. App. Xxx.

[6] 3 Add. 79; Haggard’s Report of Judgment, p. `19

[7] 6 Moo. P. C. 341

[8] 3 Bro. C. C. 441

[9] 1 Philim. 90, 100.

[10] 1 Philips, at p. 100

[11] Swinburne, part ii. s. 3

[12] 6 Moo. P. C. 341

[13] Law Rep. 1. P. AND D. 398


[14] 3 Add. 79, and Haggard’s Report of the Judgent

[15] Commentaire sur les donations entre vifs et testaments, tom. Ii. 451-7

[16] P.16

[17] P. 146

[18] Traites des donations entre vifs et testaments, liv. Iii. Tit. 2, ch. Ii 339. Vol. i. 369

[19] Liv. Iii. Tit. 2, s. 3

[20] Instit. Lib. II. tit. 12, 1


[21] 5 Johnson N. Y. Ch. Rep. at p. 159

[22] Williams on Executors, 6th ed. Vol. p. 37, n.x

[23] Lib. 28, tit. i. s.36

[24] 3 Washington, at p. 585; referred to in Sloan v. Maxwell, 2 H. W Green (New Jersey Ch. Rep.) at p. 570

[25] 2 Southard, at p. 660

[26] 4 Washington, at p. 267


[27] 2 H. W. Green (N. J. Chan. R.) 563

  1. 5 Johnson N. Y. Ch. Rep. at P. 159

[28] 3 Moo. P. C. 282

[29] 3 Moo. P. C. at 291

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