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distemper (12), such as have their senses besotted with

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sary to shew that there was, not merely that case;" and, to be sure, the facts a cessation of the violent symptoms, there adduced were very feeble to prove but, a restoration of the faculties of the that the testatrix, who had been submind, sufficient to enable the party ject to general derangement, was resoundly to judge of the act." The stored to a disposing mind and memowords last quoted, were delivered as an ry: an instrument was brought to her, exposition of Lord Thurlow's real ready written; she was told its purmeaning, when, (in the Attorney-Ge- port, (which she might, or might not, neral v. Parnther, 3 Br. 444), he said, understand), and asked if it met her “by a perfect (lucid) interval, I do not consent; she answered “yes," and did mean a cooler moment, a mind relieved it freely. The surprise is, not that such from excessive pressure,

but an interval an instrument should have been finally in which the mind, having thrown off set aside, but that any jury could have the disease, had recovered its general been found to return a verdict once in habit.” This dictum, if only applied in its favour. For, the same principles the qualified way in which Sir William are applicable quite as strongly to a Grant received it, seems open to no ob- will of real, as to a will of personal esjection. But, Lord Eldon, taking Lord tate; and however consonant to reason Thurlow's (reported) words more strict- and justice any paper propounded as a ly, supposes him to have distinctly will may be, in the view of an ecclesimeant, that where lunacy is once es- astical court, that instrument must still tablished, a commission against the par- appear to be, in substance and effect, ty ought not to be superseded, unless the very act and deed of the deceased, he is restored to as perfect a state of and of no other person or persons whatmind as he had before. Now, if Lord soever, acting in the name and on the Thurlow meant to insist that it was behalf of the deceased, how well soever necessary the party's mind should pos- intentioned; otherwise the paper cansess all its original tone and vigour not be entitled to probate as that for (which any ordinary sickness may im- which it is propounded, namely, a valid pair), Lord Eldon has irresistibly shewn will. (Brogden v. Brown, 2 Addams, the injustice that would arise, if a per- 441. See ante, the two first paragraphs son who once possessed the strongest of this note, but see also infra, the conmind, but who has been reduced by the clusion of the present paragraph). delirium of fever, or any other cause, to In the case just cited, a will was an inferior degree of capacity, should opposed, on the ground, that the tesbe denied that privilege of making a tatrix, at and about the whole time will of personal estate, which is allowed when the will bore date, was delirious ; to a boy at the age of fourteen. (Ex and was rendered incapable thereby of parte Holyland, 11 Ves. 11). How- making and executing a will. The ever, in Cartwright v. Carturight, (1 evidence indisputably proved that she Phillim. 119), Sir William Wynne said, was delirious at times, for the last three

undoubtedly the rules laid down in or four days of her life-a period coThe Attorney-General v. Parnther were vering the whole transaction relating to with a view to the particular facts of the will. The court distinguished be

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drunkenness (13)—all these are incapable, by reason of men

tween delirium, and fixed mental de Proof of mere acquiescence and adoprangement, or permanent, proper in- tion of such an instrument, in conjunc. sanity; and held the distinction to be tion with proof of almost any, whatever, clear in one particular, namely, in the glimmering of capacity at the time of greater comparative facility of proving the execution, it was said, would be a lucid interval in a case of delirium good to support the will; and would than in a case of proper insanity. Por, sufficiently indicate mind and rolition, to in the latter case, the patient so affected, justify a court of probate in pronouncis not unfrequently rational to all out- ing for it as a genuine and valid will. ward appearance, without any real But, partial insanity may invalidate abatement of his malady. But, the a will, which is fairly presumable to apparently rational intervals of persons have been the offspring of that partial merely delirious, for the most part, are insanity. (Dew v. Clark, 1 Addams, really such. Delirium is a fluctuating 284). If, therefore, a parent make a state of mind, created by temporary ex- will, plainly inofficious in respect to his citement; in the absence of which, to only child, and the parent is proved be ascertained by the appearance of the to have been, at the time of making patient, he is, most commonly, really such will, under a morbid delusion sane. Hence, as also indeed from their as to the conduct and character of greater presumed frequency in most that child, the court of probate will cases of delirium, the probabilities, a relieve, by pronouncing the will to be priori, in favour of a lucid interval, are invalid, and holding the parent to have infinitely stronger in a case of delirium, died intestate in law; however sane he than in one of proper insanity; and the may have been, in other particulars, or difficulty of proving a lucid interval is even generally, at the time of making less, in the same exact proportion, in the will. For, as a party may be both the former than in the latter case. The sane and insane, at different times, upon court also distinguished between the the same subject; so, he may be both much greater proof of capacity which sane and insane, at the same time, upon must be given to support either an different subjects. “inofficious" testament, or one which is “ The true criterion,” said Sir John obtained by a party materially bene- Nicholl,—“ the true test of the absence fited thereby; and the proof which is or presence of insanity, I take to be, sufficient to establish a will consonant the absence or presence of delusion. with the testator's natural affections Wherever the patient once conceires and moral duties; especially when such something extravagant to exist, which will is either the testator's own sole act, still has no existence whatever but in or one under which his coadjutors, if he his own heated imagination; and wherehad any, take no benefit. The court fur- ever he is incapable of being, permather held, that where the disposal made nently, reasoned out of that conception, by a will is perfectly just and proper, it such a patient is said to be under a despeaks for itself, and carries, upon the lusion, in a peculiar, half-technical sense face of it, its own recommendation, of the term; and the absence or pre

tal disability, to make any will so long as such disability

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sence of delusion, so understood, forms, can be adduced than an incidental quein my judgment, the true and only test ry by Sir Bartholomew Shower, apor criterion of absent or present insani- pended to his report of Warner v.North: ty. In short, I look upon delusion, in (2 Show. P.C. 110): but, although the this sense of it, and insanity, to be al- statute of 25 Hen. VIII, enacts, that most, if not altogether, convertible appeals from the Ecclesiastical courts terms; so that a patient under a delu shall be heard, like appeals from the sion, so understood, on any subject, in court of Admiralty, before such comany degree, is, for that reason, essen- missioners as shall be named by the tially mad, or insane, on such subject, in crown, who shall have full power defithat degree." (S. C. 3 Addams, 79—209. nitively to determine such appeal, and Sir John Nicholl's decision was affirm- no further appeal shall be had or made ed, on appeal, by the court of Dele- from the said commissioners:-still, gates, early in 1829).

this has been construed not to mean, that In the case of Maxwell v. Lord Mon- the sentence of the commissioners first tague, (cited in Baker v. Hart, 3 Atk. appointed shall be absolutely final. Lord 546), a testator was determined to be Nottingham held, “it would be absurd, compos mentis, upon a suit in the Ec- and tend to a failure of justice, to take clesiastical court, respecting probate as from the king the dernier resort, and to his personal property, and that sen- lodge it in the Delegates." (See 4 Ves. tence was affirmed in the court of De- 195). So, Lord Clare, Chancellor of legates: afterwards, on a trial at law in Ireland, (in Goodwin v. Giesler, Irish relation to the real estate devised by T. R. 384), said, “a sentence of affirmthe will, the testator was found non ance by the court of Delegates, must compos, and then an application was bind the right of the parties finally and made to the House of Lords, by peti- irrevocably, unless his Majesty shall be tion, to reverse the sentence in the court graciously pleased to interpose, and to of Delegates, in order to make the de- appoint commissioners of review, to do terminations uniform; but the House that justice which ought to have been of Lords dismissed the petition, because executed under the ordinary commission (according to the report) " the sentence of appeal. That such a power rests of the Delegates is decisive, and no ap- with the crown, no man can doubt." peal lies from it.” Now, that no ap- And a list is given in a note to 4 Ves. peal lies to the House of Lords, from a 194, of twenty commissions of review sentence of the court of Delegates, seems granted between the years 1666 and well established, both by positive enact- 1698. It is, however, perfectly estabment and the practical construction put lished, that a commission of review, thereon by other decisions as well as after a sentence by the court of Delethat of Marwell v. Montague ; (see stat. gates, is not ex debito justitiæ, or what 25 Hen. VIII. c. 19, s. 4. Cotlington's the subject may claim as a right; but case, 2 Swanst. 328, n. Saul v. Wil- a prerogative of the crown, to be exerson, 2 Vern. 118); and in opposition cised with the advice of its officer holdthereto, it is believed, nothing more ing the great seal, according to circumVOL. II.


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lastst. To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void (14).

2. Such persons as are intestable for want of liberty or freedom of will, are, by the civil law, of various kinds; as


stances. (Franklin's case, 2 P. Wms. be not one of insanity, or of lunacy,
299. Cottington's case, 2 Swanst. 328, n. strictly speaking. (Sherwood v. Saund.
Hill v. White, Mosely, 34. Matthews erson, 19 Ves. 283. Ridgway v. Dar-
v. Warner, 4 Ves. 205. Ex parte Fea- win, 8 Ves. 67. Ex parte Cranmer, 12
ron, 5 Ves. 645. Eagleton and Coventry Ves. 449).
v. Kingston, 8 Ves. 465).

(13) See Swinburne, pt. 2, sect. 6. (11) See Swinburne, pt. 2, sect. 4, A commission of lunacy has issued an idiot, according to juridical defini- against a party who, when he could be tion, is one who, from his nativity, by kept sober, was a very sensible man; a perpetual infirmity, is non compos men- but whose constant habits were those of tis. (Co. Litt. 246 a).

intoxication. (Anonym. cited in 8 Ves. (12). See Swinburne, pt. 2, sect. 5. 66). And in the case of Rer v. Wright, Old age alone does not justify a pre- (2 Burr. 1099), a rule was made upon sumption of the party's incapacity; the defendants, to shew cause why a (Lewis v. Pead, 1 Ves. jun. 19); but, criminal information should not be exwhen accompanied by great infirmity, hibited against them, for the misdeit will be a circumstance of weight in meanor of using artifices to obtain a will estimating the validity of any transac- from a woman addicted to liquor, when tion; (Griffiths v. Robins, 3 Mod. 192); she was under very improper circumfor, that hypothetical disability which stances of mind to make one. is always supposed to exist during in

(14) See ante, note (1) to chapter fancy, may really subsist when the par. 19; and Swinburne, pt. 2, sect. 10 and ty is of age, and even a much greater 11. degree of incapacity, though the case


“But, if a person of sound mind position of his effects, that disposition makes his will, this will is not revoked will be of no validity, though he should nor affected by his subsequent insanity. afterwards attain the age at which he (4 Co. 61).”—CH. (For, what the law might make a testament; unless he requires is, that a testator should be of then expressly confirms his previous capacity at the time he makes his will. testamentary disposition; which is, in (Swinb. pt. 2, sect. 3). Therefore, if a fact, making a new will. (Swinb. pt. child, before he has reached the age 2, sect. 2).-Ed.] prescribed by makes a written dis

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prisoners, captives, and the like (8) (15). But the law of
England does not make such persons absolutely intestable;
but only leaves it to the discretion of the court to judge, upon
the consideration of their particular circumstances of duress,
whether or no such persons could be supposed to have li-
berum animum testandi. And, with regard to feme-coverts, Feme-coverts.
our law differs still more materially from the civil. Among
the Romans there was no distinction; a married woman was
as capable of bequeathing as a feme-sole (t). But with us
a *married woman is not only utterly incapable of devising [ * 498 )
lands, being excepted out of the statute of wills, 34 & 35
Hen. VIII. c. 5, but also she is incapable of making a tes-
tament of chattels, without the license of her husband.
For all her personal chattels are absolutely his; and he may
dispose of her chattels real, or shall have them to himself
if he survives her: it would be therefore extremely incon-
sistent, to give her a power of defeating that provision of
the law, by bequeathing those chattels to another (v). Yet
by her husband's licence she may make a testament (u); and
the husband, upon marriage, frequently covenants with her
friends to allow her that licence: but such licence is more
properly his assent; for, unless it be given to the par-
ticular will in question, it will not be a complete testa-
ment, even though the husband beforehand hath given
her permission to make a will (w). Yet it shall be suffi-
cient to repel the husband from his general right of ad-
ministering his wife's effects; and administration shall be
granted to her appointee, with such testamentary paper an-
nexed (x). So that, in reality, the woman makes no will at all,
but only something like a will(y); operating in the nature

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(s) Godolph. p. 1, c. 9.
(1) Ff. 31, 1. 77.
(v) 4 Rep. 51.
(u) Dr. & St. d. 1, c. 7.

(w) Bro. Abr. tit. Devise, 34. Stra. 891.

(x) The King v. Bettesworth, T. 13 Geo. II. B. R.

(y) Cro. Car. 376. 1 Mod. 211.

(15) See Swinburne, pt. 2, sect. 8.

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