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and many more might be enumerated, are common to all cases of this description. There is an additional source, when the transaction of which they have to speak is remote, a circumstance sufficient in itself to account for a no inconsiderable degree of contrariety of evidence, even where the witnesses have to speak of facts merely, and not to opinions formed, and inference built, upon facts, of which most of the evidence furnished on questions of capacity is commonly made up. If the Court, therefore, on questions of capacity, generally, is accustomed to rely but little on such evidence, so far as it is that of mere opinion, but to form its own judgment from the facts and the conduct of the parties at the time-it becomes it to do so, more peculiarly where much of the evidence not merely consists of opinions delivered long subsequently to the transactions which they profess to have suggested them-upon loose recollections too, and after repeated discussions of the subject matter with interested parties (p).

In a case where there was great conflict of opinion amongst the witnesses as to the capability of a testator, some being of opinion that he was decidedly incapable; some, that his capacity was in no degree affected; others, that, though capable, his mind was shaken-Sir John Nicholl said, the just result is, that the testator's faculties were in a degree damaged and deteriorated, but that he was not intestable; that his capacity was so far impaired and fluctuating, that the Court would require not only the mere fact of execution, but also satisfactory evidence of instructions, and proof of volition and intention (q).

Where a length of time has been suffered to elapse, witnesses even to facts will be inaccurate, and the Court must be prepared for variation in the relation of circumstances by the most credible and most respectable; but what is the Court to expect upon matters not of fact, but of opinion, when parties have enlisted themselves, as it were, on one side or the other? In all cases of opinion as to capacity, the

(p) Evans v. Knight, 1 Add. 239, 240.

(q) Williams v. Goude and Bennet, 1 Hagg. Eccl. Rep. 594, 595.

Court invariably finds conflicting evidence; the person is seen at different times and under different circumstances; and, therefore, where a great number of the witnesses describe a testator as being in a state of absolute fatuity and idiocy, others assert that his mind was not at all deteriorated; others, again, take a middle course; and there is no reason to suppose that such opinions are not sincerely given the Court can only reconcile them by supposing that his capacity fluctuated; but, it may at the same time judge a little of the credit due to the different opinions, from observing how the facts are laid (r).

Witnesses speaking to transactions and conduct spread over many years, and not to specific facts fixed by time, place, and circumstances, are apt to describe occasional extravagances as constant and perpetual habits (s).

The criterion by which the capacity of a testator is to be examined, especially where there is much contradictory evidence, can only be drawn from his acts. The mere opinions of witnesses on this point, being drawn from very different standards, are of little weight, and must fluctuate, from their different abilities to form an opinion, from their different opportunities of seeing the person, and from the different condition of the testator's mind or humour at different times. Thus, the capacity of a testator of a very advanced age, and subject to occasional incapacity from violent nervous attacks, was established on the proof of acts inferring his general possession of reason, notwithstanding much conflicting evidence of witnesses (t). Lord Redesdale seems to have expressed an opinion, that a person might be capable of making a codicil to his will, though not of doing any thing which requires deliberation, as a bargain (u).

The manner in which a will has been written and executed, and the contents of the will itself, coupled with the situation of the testator, and the circumstances under which it was made, afford important evidence as to his capacity (v).

(r) 1 Hagg. Eccl. Rep. 589-591. (8) 3 Hagg. Eccl. Rep. 603. (t) Kinleside v. Harrison, 2 Phill. Rep. 449–574.

(u) 2 Dow, P. C. 283. See 2 P. Wms. 270; 1 Eq. Cas. Abr. 406. (v) 9 Ves. 610.

And it seems, that, from such evidence alone, where the terms of the supposed will are such as tend to exclude the supposition of the maker's sanity, the jury may decide against the validity of the will. But it is clear, on the other hand, that it is not sufficient to shew that the dispositions of the will are imprudent and unaccountable (w). It was said by Lord Eldon, that subsequent papers written by a testator, though evidence of his competence, are regarded with considerable jealousy (x). There are cases of wills being established, which were made during the intervals of delirium, because they have contained internal evidence of their being reasonable, and such as a man in his senses may be supposed to have made. So, the question must depend materially on the will itself, the circumstances of its attestation, and its reasonableness, which may be such as to establish the will without any dispute (y).

In one case, where it was admitted that, according to the coroner's inquest, the testator must be taken to have been insane at the time he committed an act, in consequence of which he died-it was said, that it did not follow that he continued insane during the whole interval from the commission of that act to his death, or that he was so at the time of making his will (≈).

And in one case, where there was no evidence of the deceased's insanity at the time of or prior to instructions for his will, the commission of suicide, three days afterwards, was held not to invalidate the paper by raising an inference of previous derangement (a).

And in another case, where the attesting witnesses to a will, disinterested medical men, gave evidence strongly in favour of the testator's sanity, the Ecclesiastical Court would not set aside the will on proof by interrogatories, without plea, that the deceased, many years before, had been under an insane delusion (b).

Where clear, decided, and

(w) Burr v. Davall, 8 Mod. 59.
(x) 19 Ves. 506.

(y) Levy v. Lindo, 3 Mer. 85.
(*) Ibid. See ante, Chap. 3, s. 11.

undoubted insanity has been

(a) Burrows v. Burrows, 1 Hagg. Eccl. R. 109.

(b) Kemble and Smales v. Church, 3 Hagg. Eccl. Rep. 273.

established to have once existed before the contested transaction, acts otherwise of a doubtful character may become of more force in proof of its existence at the time in question than if no previous derangement had appeared. Even acts decidedly of an insane character, occurring after the transaction, may reflect back upon acts otherwise equivocal, about the time of the transaction itself, or on the general deportment of the party; but, where there are no decided acts proved ever to have taken place, when all the acts are equivocal, when they may be attributed to other causes, to violent pastion, to intoxication, operating upon a mind naturally excitable-it does not appear that, in any case, such equivocal acts, however numerous, have been held to establish insanity (c).

2. Non compos mentis is a common law disability, with respect to every disposition of property, and, consequently, what shall be considered a sound and perfect memory at the time of devising lands, is a question determinable at common law (d).

A Court of equity will not interfere in setting aside devises of land, until they have been determined invalid by a Court of law. A devisee of real estate, having filed a bill against the heir of the devisor, to be put into possession of the property devised; and the heir, by his answer, having denied the validity of the will, alleging that it was obtained by circumvention and fraud, when the testator was in extremis, and not of sufficient capacity, or of disposing memory-the Court was of opinion, that the suit could not be proceeded in, since, when any doubt existed as to the evidence, it was an invariable rule not to establish a will against the heir without a trial at law, and the House of Lords would reverse a decree pronounced in breach of the established practice (e).

3. It seems to be a well established principle, that a will of real estate cannot be set aside in equity, on the ground of fraud or imposition, without having been first tried at law on an issue devisavit vel non; the subject being proper (c) 3 Hagg. Eccl. Rep. 599, 600. 13 Ves. 297. See Earl of Fingal (d) 6 Rep. 23 b. v. Blake, Molloy's Rep. temp. Hart,

(e) Dawson v. Chater, 9 Mod. 90; p. 113.

for the inquiry of a jury (f). A bill was filed by an heir-atlaw, charging fraud and circumvention in obtaining a will, and insanity on the part of the testatrix. Lord Hardwicke said, he could not make a determination without a trial at law, which was accordingly directed (g). But an heir-at-law cannot proceed in equity for setting aside a will, unless there is some legal obstacle in the way of his bringing an ejectment (h). To a bill filed in a Court of equity for the purpose of setting aside a will, on the ground of insanity, may be pleaded, that the will was duly executed, and ought to prevail until declared invalid by a Court of law (i). In one case a will of lands was set aside after forty years possession under it, on account of the insanity of the devisor, and to the prejudice of a purchaser (j). But an heir-at-law contesting his ancestor's will, in a suit to establish it in equity, is not entitled to an issue devisavit vel non to try the validity of it in a Court of law in all cases, and at any distance of time, but generally will be precluded by the acquiescence of twenty years, which would bar his possessory rights at law, or if his delay put the adverse parties in a much worse situation than they would have been in if he had disputed the will originally (k).

A Court of law will not set aside a will on the ground of non compos mentis, if the party knew perfectly what he was doing when it was made. The widow of Mr. Bennett claimed the whole of her husband's property under his will. Bennett had been greatly debilitated in mind and body by habits of debauchery, and the woman effected her marriage with him by getting into lodgings opposite to him at Bath; she obtained a great degree of influence over him; and, immediately after the marriage, turned away all his (f) Bransby v. Kerrich, 2 Eq. (j) Squire v. Pershall, Vin. Abr. Cas. Abr. 406; 7 Bro. P. C. 437, title " Devise," Z. (2), pl. 13. The Toml. ed.; 2 Atk. 324. verdict against the will, in this case,

(g) Webb v. Claverden, 2 Atk.423. was obtained by default, on an issue See Id. 324. directed by the Court of Chancery. 2 Bro. P. C. 396, Toml. ed.

(h) Jones v. Jones, 7 Price, 663; Jones v. Frost, Jac. Rep. 466. See Pemberton v. Pemberton, 13 Ves. 297, 298.

(i) Anon. 3 Atk. 17.

(k) Tucker and Others v. Sanger and Others, 1 M'Clel. 424; S. C. 13 Price, 119.

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