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There is no grade of understanding between the highest and the lowest, which incapacitates a testator, when there is no fraud or imposition. In the language of Senator Verplanck,' "To establish any standard of intellect or information beyond the possession of reason in its lowest degree, as in itself essential to legal capacity, would create endless uncertainty, difficulty and litigation, would shake the security of property and wrest from the aged and infirm that authority over their earnings or savings which is often their best security against injury and neglect. If you throw aside the old common law test of capacity, then proofs of wild speculations, or extravagant or peculiar opinions, or of the forgetfulness, or the prejudices of old age, might be sufficient to shake the fairest conveyance, or impeach the most equitable will. The law, therefore, in fixing the standard of positive legal competency, has taken a low standard of capacity; but it is a clear and definite one, and therefore wise and safe.

"It holds, in the language of an English writer on this subject, that 'weak minds differ from strong ones only in the extent and power of their faculties; but unless they betray a total loss of understanding, or idiocy, or delusion, they can not properly be considered unsound.'"*

Where unsoundness of mind is alleged as a ground for defeating a devise of real estate, the fact of insanity, or of unsoundness of mind, must be established with reasonable certainty; the evidence of insanity should preponderate, or the will must be taken as valid. If there is only a bare balance of evidence, or a mere doubt only, of the sanity of the testator, the presumption in favor of sanity must prevail and turn the scale in favor of the sanity of the testator. Jarman on Wills, 5 Am. Ed., 104; Red. on Wills, 31-50; Perkins v. Perkins, 39 N. H. 163; Brooks v. Barrett, 7 Pick. (Mass.) 94; Turner v. Cook, 36 Ind. 129; Dickie v. Carter, 42 Ill. 376; Terry v. Buffington, 11 Ga. 337; In re Coffman, 12 Ia. 491; Cotton v. Ulmer, 45 Ala. 378.

Application of the law.

M. Gill, at the time of his death, February 10, 1841, was seized of certain premises in Albany, New York, which, by his last will and testament, executed four days before his death, he devised to his daughter, Caroline Nestle, in fee. The children of Elizabeth Blanchard, also a daughter, whom he survived, brought an action of ejectment against the husband of Caroline Nestle, to recover the premises as heirs at law of the testator. The only

'In Stewart v. Lispenard, 26 Wend. (N. Y.) 255 (1846).

2 Blanchard v. Nestle, 3 Denio (N. Y.), 37; Shelford on Lunacy, 39 Am. Ed. 1833.

Under the practice then existing it seems to have been necessary to join the wife.

question in the case related to the validity of the will, which was attacked by the plaintiffs on the ground that the testator was not of sound mind: or that if he was it was procured by undue influence exerted over him by his daughter, Mrs. Nestle, and her husband, the defendant. The subscribing witnesses testified that the testator was of sound mind when the will was executed, and there was other testimony to the same effect. On the other hand, several witnesses were examined on behalf of the plaintiffs, whose testimony tended to prove that the testator was then unable to transact business by reason of weakness both of body and mind; and it was shown that at about that time the defendant had written a letter representing that the testator was in a state of great physical debility, and in effect that he had become imbecile in mind. It appeared that the will was in part written by Mrs. Nestle from the dictation of the testator, and executed in her presence, and there were other circumstances connected with its execution which the plaintiffs claimed afforded evidence that an improper influence had been exerted over his mind by Mrs. Nestle. The property devised to her was of greater value than that given to the plaintiffs by about $5,000. On the trial, the judge charged the jury that "Imbecility of mind in a testator will not avoid his last will and testament. Idiots, lunatics, and persons non compos mentis are disabled from disposing of their property by will, but every person not embraced within either of the above classes, of lawful age, is competent to make a will, be his understanding ever so weak. Courts in passing upon the validity of a will do not measure the extent of the understanding of the testator; if he be not wholly deprived of reason, whether he be wise or unwise, he is the lawful disposer of his property, and his will stands as a reason for his actions." The judge further remarked that he understood the doctrine established to be that mere imbecility of mind, however great, will not avoid the will of a testator. If he be not totally deprived of understanding, his right remains perfect to dispose of his property by will. The plaintiff's counsel excepted. He also charged, on the subject of undue influence, that if the testator had been induced to make the provisions in the last will by the undue influence of the defendant or his wife, the will was void; but it was for the jury to determine from the evidence whether there was any undue influence exercised over the mind of the testator at the time he executed his will. The jury found a verdict for the defendant. The plaintiffs move for a new trial on a case. In refusing the new trial Jewett, J., said: "I have examined the evidence. I think carefully, and am free to say that in my opinion it falls far short of establishing the fact of any improper influence having been exercised over the testator in the making of his will. There is not the slightest proof that I can discover, to show any artifice or fraud having been practiced or attempted,

'In his charge to the jury the judge announced the doctrine laid down in Stewart v. Lispenard, 26 Wend. 255. The doctrines of that case as stated by the trial judge are not fully sustained by the later New York authorities. See Delafield v. Parish. 25 N. Y. 9; Caw v. Snyder, 46 Barb. 230; Alstan

v. Jones, 10 Paige, 98. The expression," mere imbecility of mind, however great," seems to be carrying the doctrine too far, as the greatest degree of imbecility of mind must be complete imbecility, which is only another name for a total loss of understanding.

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by any person upon the testator in regard to it. It is true that the defendant's wife wrote a part of the will; but if there is any reliance on human testimony, it is equally true that in that she only obeyed, with reluctance, the commands, or complied with the urgent request of her father. It is said that she dictated the will. If by that is meant that she reminded her father of what he said, as she stated, before told her in relation to certain of his property, it is true. But does that amount to the exercise of undue influence? Influence--persuasion--may be fairly used. A person has a right by fair argument or persuasion to induce another to make a will, and even to make it in his own favor. The procuring a will to be made by such means is nothing against its validity. Blanchard v. Nestle, 3 Denio (N. Y.), 37; citing Miller v. Miller, 3 Serg. & R. 267.

$ 72. Power to Transfer Real Estate by Wills.-The power to make a will is usually regulated by statute. As an illustration we quote a statute of New York:

All persons except idiots, persons of unsound mind, married women' and infants, may devise their real estate by their last will and testament duly executed.

Under this statute the Supreme Court of New York hold that mere imbecility of mind in a testator will not avoid his last will and testament. Idiots, lunatics and persons non compos mentis are disabled from disposing of their real property by will, but any person not embraced within either of the above classes, of lawful age, etc., is competent to make a will, be his understanding ever so weak, if he be not wholly deprived of reason."

§ 73. Ratification (1) Infants.-The English text writers lay down the rule without hesitation or qualification, that the ratification of a will after the testator arrives at the age re

1 The statute has been changed as to Y.) 384; Wade v. Holbrook, 2 Redf. married women.

2R. S. N. Y. 1836, 56, Sec. 1; Blanchard v. Nestle, 3 Denio (N. Y.),


3 Stewart v. Lispenard, 26 Wend. (N. Y.) 255; see also Legg v. Meyer, 5 Redf. (N. Y.) 628; Townsend v. Bogarte, 5 Redf. (N. Y.) 93; approving Bundy v. McKnight, 48 Ind. 502; Merrill v. Rolston, 5 Redf. 220; Philipps v. Chater, 1 Dem. 533; Leslie v. Leslie, 15 Weekly Dig. 56; 92 N. Y. 636; Wood v. Bishop, 1 Dem. 512; La Barr v. Vanderbuilt, 3 Redf. (N.

(N. Y.) 378; Horn v. Pullman, 72 N. Y.269; Children's Aid Society v.Loveridge, 70 N. Y. 387; Foreman v. Smith, 7 Lans. (N. Y.) 443; see 54 Barb. (N. Y.) 274; Kinne v. Johnson, 60 Barb. (N. Y.) 69; Van Guysling v. Van Kuren, 35 N. Y. 70; Johnson's Estate, 57 Calif. 529; Collins v. Osborn, 34 N. J. Eq. 511; Barnhardt v. Smith, 86 N. C. 473; Grubbs v. MeDonald, 91 Pa. St. 236; Re Lewis, 33 N. J. Eq. 219; Brown v. Ward, 53 Md. 376; Brown v. Riggin, 94 Ill. 560; Hubbard v. Hubbard, 7 Or. 42.

quired to execute a valid will, although executed before that age, renders it a valid instrument.'

(2) Other persons under legal disabilities.-It is very questionable how far a will, executed while the testator is under legal disability, can be regarded as a valid instrument, from the mere fact of its subsequent parol ratification by the testator, after the removal of such disability. It would seem upon principle that the republication, according to the requirements of the existing statutes, would be necessary."

$74. The Rule Stated by Redfield. We think it safe to lay down the rule that where a will is required to be in writing and executed before witnesses, in order to its validity, and is thus executed before the testator arrives at the required age, it can not be rendered valid, after the testator arrives at full age, except by republication with all the prescribed formalities."

75. Drunkenness. It seems now to be conceded that intoxication, to the extent of producing mental oblivion, while that state continues, deprives the party of the ability to enter into contracts or to execute a valid will and testament.*

The law stated by Swinburne.

"He that is overcome with drink, during the time of his drunkenness is compared to a madman, and therefore if he make his testament at that time it is void in law. Which is to be understood, when he is so excessively drunk that he is utterly deprived of the use of reason and understanding. Otherwise, if he be not clean spent, albeit his understanding is obscured and his memory troubled, yet he may make his testament, being in that case.""

§ 76. Senile Incapacity.-Extreme old age always raises a doubt as to testamentary capacity, but no just inference can be drawn from the age of the testator alone. It has been said that "If a man in his old age becomes a very child again in his understanding, and is become so forgetful that he knows not his own name, he is then no more fit to make his testament

11 Redfield on Wills, 18; 1 Williams on Ex'rs, 16; 7 Bac. Abr., Wills B, 300.

21 Redfield on Wills, 19.
31 Redfield on Wills, 19.
* 1 Redfield on Wills, 160.

'Swinburne on Wills, Part II, Sec. 6; Agrey v. Hill, 2 Add. 206; Billinghurst v. Vickers, 1 Philline, 191; Wheeler v. Alderson, 3 Hagg. Ecc. 602.



than a natural fool or a child or lunatic." 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 to command the attention due to his infirmities. The will of such a man ought to be regarded with great tenderness where it appears not to have been procured by fraudulent arts, especially where it contains the dispositions of his property which the circumstances of his situation in life and his natural affections would seem to dictate.'

§ 77. Undue Influence, Fraud, etc.-Fraud and undue influence are so nearly synonymous terms that it will not be necessary to enter into the discussion of the distinction between them since the result of either must be the same upon the testamentary act. No general rule can be laid down as to what constitutes undue influence, further than that in order to make a good will a person must be a free agent, and feel at liberty to carry out his own wishes and desires; and any restraint, threats or intimidations brought to bear upon him, which he has not the strength of mind or will to resist, if exerted so as to coerce him against his desire and purpose into the making of a will, or any of its provisions, is undue influence within the meaning of the law, and renders the will or the provisions so affected, void; but, of course, to avoid a will on the ground of undue influence, it must be made to appear, by the evidence, that it was obtained by means of influence amounting to moral coercion, destroying free agency, or by importunity which could not be resisted, so that the testator was constrained to do that which was against his actual will, and which influence he was unable to withstand, or too weak to resist.'

$78. Its Form and Execution.-By the English statute of frauds which has been substantially adopted in all the American

31 Redfield on Wills, 510; Davis v. Calvert, 5 Gill & J. (Md.) 269; Dietrick v. Dietrick, 5 Serg. & R. (Pa.) 207.

11 Williams on Ex'rs, 36; Griffiths Cold. (Tenn.) 130; Hathorn v. King, 8 v. Robins, 3 Madd. 191; Potts v. Mass. 371. House, 6 Ga. 324; Redf. Am. Cases on Wills, 262; Redfield on Wills, 98; Mackenzie v. Handasyde, 2 Hagg. Ecc. 211; Van Alst v. Hunter, 5 Johns. Ch. (N. Y.) 148.

* Maverick v. Reynolds, 2 Brad. Sur. (N. Y.) 360; Van Hess v. Rainbolt, 2

Brick v. Brick, 66 N. Y. 144: Barnes v. Barnes, 66 Me. 285; Bradford v. Vintor, (Mich.); 26 N. W. Rep. 401.

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