1 Staples v. Wellington, 58 Me. 454 (1870).

2 Banks v. Goodfellow, Law R. 5 Q. B. 549 (1870). In this very interesting case, Cockburn, C. J., thus lays down the law. "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

§ 75. In a very late case, a distinction was made between the plea of lunacy by the lunatic and by the other contracting (6 Moore, P. C. 341), the judicial committee of the Privy Council, and in the more recent case of Smith v. Tebbitt (Law R. 1 P. & M. 398; 16 L. T. Rep. (n. s.) 841), 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 show, 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 (ubi sup.), 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 (Moore, 759; 8 Vin. Abr. 43, No. 22) it is said to have been agreed by the judges, ' that sane memory for the making of a will is not always when 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 (6 Rep. 23): '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 (3 Curt. App xxx.), 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 toward 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 (3 Add. 79; Hagg. Rep. of Judgment, 19), the insane delusion had a direct bearing on the provisions of the will. In such cases, party; and it was held by the majority of the court, on the analogy of cases respecting the pleas of infancy and of coverthe 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, such as the Attorney-General v. Parnther (3 Bro. C. C. 441), and Cartwright v. Cartwright (1 Phillim. 90, 100), 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 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 show 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, ' 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 show 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 in which he treats of what persons may make a will, Swinburne, part 2, § 3): '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, ture, that the defence was personal only, and not available to the sane party.1 The rule was thus declared: Where a Conor 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 hare 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 showing that a more indulgent view of the effect of insanity as affecting testamentary incapacity was then taken than has latterly prevailed, We come now to the case of Waring v. Waring (ubi sup.), since followed by that of Smith v. Tebbitt (ubi sup.), 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 labors 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 ourselves 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 mind 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, every one 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 tract has been entered into, under circumstances which would ordinarily make it binding, by a sane person with one who is insane, and that contract has been adopted, and is sought to be enforced (as in the present case) by the representatives of the latter, it is no defence to the sane party merely to show that the other party was non compos mentis at the time the contract was made.1 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 (3 Add. 79, and Haggard's report of the judgment), 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 had the effect of destroying the capacity to make one."