It has been decided that one to whom the grantor, after recovering his sanity, transfers the property, has the same right to avoid a conveyance made by his grantor while insane, in favor of another person, as has the grantor himself.75 But in such case it might seem that, as in the case of a conveyance by an infant,76 the mere execution of an inconsistent conveyance by the grantor involves in itself a repudiation of the voidable conveyance.

Return of consideration. According to perhaps the weight of authority, one cannot assert the invalidity of his conveyance by reason of mental incapacity, as against his grantee who took the conveyance in the reasonable belief that the grantor was mentally capable, unless such grantee is placed in statu quo by a return of the consideration.76a By other authorities the right to avoid the conveyance is regarded as not dependent on the return of the consideration.76 b Even in states where ordinarily the right of the grantor to disaffirm his conveyance, in case of the grantee's ignorance of his incapacity at the date of the execution thereof, is dependent on the return of the consideration, a different view may be taken in case the consideration enured, not to the benefit of such insane grantor, but to another.77

N. E. 735 (devisee); Hunt v. Rabitoay, 125 Mich. 137, 84 Am, St. Rep. 563, 84 N. W. 59; Judge of Probate v. Stone, 44 N. H. 593.

72. See Domling v. Domling, 128 Mich. 588, 87 N. W. 788; Tolson v. Garner, 15 Mo. 494; Hinchman v. Ballard, 7 W. Va. 152.

73. Allis v. Billings, 6 Mete. (Mass.) 415, 39 Am. Dec. 744; Arnold v. Richmond Iron Works, 1 Gray (Mass.) 434; Eaton v. Eaton, 37 N. J. L. 108, 18 Am. Rep. 716.

74. Smith v. Ryan, 191 N. Y. 452, 19 L. R. A. (N. S.) 461,

123 Am. St. Rep. 609, 14 Ann. Cas. 505, 84 N. E. 402; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Eaton v. Eaton, 37 N. J. L. 108, 18 Am. Rep. 716; Brown v. Freed, 43 Ind. 253; Fitzgerald v. Shelton, 95 N. C. 519. See editorial note, 20 Harv. Law Rev. at p. 419.

75. Breckenridge's Heirs v, Ormsby, 1 J. J. Marsh. (Ky.) 236, 19 Am. Dec. 71; Langley v. Langlay, 45 Ark. 392; Clay v. Hammond, 199 111. 370, 93 Am. St. Rep. 146, 65 N. E. 352.

76. Ante, Sec. 594, note 31. 76a. Coburn v. Raymond, 76

Conn. 484, 100 Am. St. Rep.

Conveyance to lunatic. A conveyance or devise may be made in favor of a person wanting in mental capacity, and the title is thereby vested in him subject to his right, upon regaining his faculties, to repudiate it.78

1000, 57 Atl. 116; Eldredge v. Palmer, 185 111. 618, 76 Am. St. Rep. 770, 57 N. E. 770; Boyer v. Berryman, 123 Ind. 451, 24 N. E. 249; Behrens v. McKenzie, 23 Iowa, 333; Gribben v. Maxwell, 34 Kan. 8, 55 Am. Rep. 233, 7 Pac. 584; Rusk v. Fenton, 14 Bush. (Ky.) 490 29 Am. Rep. 413; Jamison v. Culligan, 151 Mo. 410, 52 S. W. 224; Eaton v. Eaton, 37 N. J. L. 108, 18 Am. Rep 716; Smith v Ryan 191 N. Y. 452, 19 L. R. A. (N. S.) 461, 123 Am. St. Rep. 609, 14 Ann. Cas. 505, 84 N. E. 402; Riggan v. Green, 80 N. C. 236, 30 Am. Rep. 77; National Metal Edge Box Co. v. Vanderveer, 85 Vt. 488, 42 L. R. A. (N. S.) 343, Ann. Cas. 1914D 865, 82 Atl. 837. And see Crawford v. Scovell, 94 Pa. St. 48, 39 Am. Rep. 766. Such seems to be the English rule. Molton v. Cam-roux, 2 Exch. 487, 4 Exch. 17; Elliot v. Ince, 7 De Gex, M. & G. 475; Wood-Renton, Lunacy, 13; 19 Halsbury's Laws of England 398.

76. Henry v. Fine, 23 Ark. 417; Nichol v. Thomas, 53 Ind. 42; Hovey v. Hobson, 53 Me. 451, 89 Am. Dec. 705; Brigham v. Fayerweather 144 Mass. 48. 10 N. E. 735; Bates v. Hyman.(Miss.) - , 28 So. 567; Dewey v. Allgire, 37 Neb. 6, 40 Am. St. Rep. 468, 55 N. W. 276; Crawford v. Scoville, 94 Pa. St. 48, 39 Am. Rep. 766; Williams v. Sapieha, 94 Tex 430, 61 S. W. 115

(unless consideration still in grantor's hands).

77. See Jordan v. Kirkpatrick. 251 111. 116, 95 N. E. 1079; Physio-Medical College of Indiana v. Wilkinson, 108 Ind. 314, 9 N. E. 167; Smith's Committee v. Forysthe, 28 Ky. Rep. 1034, 90 S. W. 1075; Woolley v. Gaines, 114 Ga. 122, 88 Am. St. Rep. 22,

39 S. E 892

39 S. E 892

78. Co. Litt. 2b: 2 Blackst. Comm. 291; Concord Bank v. Bellis. 10 Cush. (Mass.) 276: Campbell v. Kuhn, 45 Mich. 513,

40 Am. Rep. 479, 8 N. W. 523.

596 Personal Disabilities. 234 7

Testamentary capacity. The mental capacity necessary for the making of a will has been the subject of an immense number of decisions, in which the subject is considered with reference to the facts of the particular case. The rule now quite generally approved in this respect is to the effect that it is sufficient if the testator knows the extent and value of his property, the number and names of the persons who are the proper objects of his bounty, their deserts as measured by their conduct towards him, their capacities and necessities, and he has sufficient memory to retain these facts in his mind until the execution of the will. Accordingly, the fact that testator was subject to insane delusions does not necessarily show incapacity to make a will. Nor is a will invalid because, at the time of making it, the testator was under guardianship as an insane person, though this fact usually, if not always, raises a presumption of insanity.79