will and codicil, or at any intermediate time: and, to encounter that evidence several of the nobility and principal gentry of the county where the testator resided, who frequently and familiarly conversed with him during that whole period, and some on the day whereon the will was made; and also two eminent physicians, who occasionally attended him, and who all strongly deposed to his entire sanity, and more than ordinary intellectual vigour, were called as witnesses; and, the attorney who drew and witnessed the codicil, whose testimony had, previously to his death, been perpetuated in Chancery, spoke very circumstantially to the very sound understanding of the testator, and his prudent and cautious conduct in directing the contents of his codicil. The latter evidence prevailed, and the validity of the will and codicil was established, and the three subscribing witnesses to the will were afterwards convicted of perjury (≈). 10. Where the evidence in such cases is contradictory, it will be tried by the test of collateral circumstances, as to which there can be no doubt, in order to ascertain how far it is consistent with those circumstances (a). This principle was mainly relied upon by the Court in a recent case, where a bill had been filed by an heir-at-law, stating that the testator was incapable of managing his affairs or of disposing of his property by will or otherwise, on account of his defective and weak understanding; and praying that the alleged will and codicil might be declared to have been obtained by fraud and undue influence, and delivered up to be cancelled. The Master of the Rolls directed an issue devisavit vel non (b), and the jury on the trial of the issue found a verdict in favour of the will. There had been an application to the Master of the Rolls for a new trial (c), which was refused; and, on appeal to the Lord Chancellor, it appeared by the judgment, that the general incompetency of the testator was principally in question. A large number of witnesses had been examined, whose evidence extended over (z) Lowe v. Jolliffe, 1 Sir W. Bl. Rep. 365. (a) Per Lord Redesdale, 5 Dow, P. C. 244. (b) Tatham v. Wright, Reg. Lib. B. 1828, fol. 2422. (c) 8th November, 1830. various periods of the testator's life, and up to his decease. The testimony of those witnesses was very conflicting; some of them considering the intellectual capacity of the testator not above that of a child, and others representing him as a man possessed of a retentive memory, of ordinary capacity, and as perfectly competent to manage his affairs. In this conflict of evidence, the Court was principally influenced in their determination by certain collateral facts in the case, which consisted of three classes: the first consisted of the testator's correspondence with various persons; the second, of his acts and conduct on several occasions; and the third, of the circumstances attending the preparation and execution of his will. The letters were said to have been written under the influence, and by the dictation of the devisee; but this assertion remained without any proof. In the absence of such proof, the Court would not presume fraud or undue influence; and there was one circumstance which directly negatived such a presumption; this was, that some of the letters were written to the devisee at a time when the testator was far away from him. Then, with respect to the acts performed by the testator, he had executed twenty-three deeds between 1782, and 1819, and some of these were of a very important kind, one of them being a mortgage of his estate for a large sum of money, and others of a nature in which the interests of other parties were involved, and who would hardly have been content to deal with him if there had been any suspicion that he was not competent to the management of his affairs. The deeds were some of them prepared, and most of them attested by respectable solicitors, and by other indifferent persons; and their attention would naturally have been drawn to the circumstances of the testator's state of mind. It could not, therefore, be expected that such solicitors would rashly shipwreck their clients' interests by dealing with a man who could not be bound by his acts. The will of the testator was prepared by a gentleman of great skill in his profession, and who had at that time retired from practice, though he had formerly been the testator's solicitor. He had before made three other wills for him, the instructions for which were given by the testator, and some of them were in his own hand-writing. That gentleman had not been cross-examined on the trial, though, if there had been any suspicion that he had been a party to collusion of any kind, he might have been questioned as to his conduct. Considering the weight and bearing of these three heads of collateral evidence upon the case, the Court was of opinion that a new trial ought not to be granted (d). 11. The notion is prevalent, that whoever commits suicide is under the influence of insanity: it being supposed impossible for a person in his senses to do an act so repugnant to reason and nature (e); but this notion is rejected by other legal writers, and treated as a vulgar error (ƒ). The excuse of insanity ought not to be strained to that length, to which it is sometimes carried by the coroner's juries, namely, that the very act of suicide is an evidence of insanity; as if every man who acted contrary to reason had therefore no reason at all. For the same argument would prove every other criminal non compos, as well as the selfmurderer. But, on account of the forfeiture incurred by a felo de se, very slight evidence of derangement at the time will warrant the jury in finding that fact (g). Lord Chancellor Redesdale expressed an opinion, that insanity is not to be inferred from the mere act of suicide. It was not inferred by law but must be proved (h). But Lord Eldon admitted, that it was fair to consider whether, at the time of a contract, the party did not intend to commit the act of suicide; and if it were proved, that he was, at the moment, under the influence of that morbid feeling, it might be a circumstance of considerable weight in leading to the inference of insanity (i). It was held, by Sir John Nicholl, in the Ecclesiastical Court, that where there was no evidence of insanity at the (d) Wright v. Tatham, before Lord Chancellor Brougham, assisted by Lord Lyndhurst and Chief Justice Tindal, 10 June, 1831. (e) Rex v. Saloway, 3 Mod. 100. (f) 1 Hawk. P. C. c. 27, s. 3; Comb. 2, 3. (g) 1 East's P. C. 389, 390. See 1 Coll. on Lun. 494, note. (h) 1 Dow, Parl. Cas. 187. time of giving instructions for a will, the commission of suicide three days afterwards did not invalidate it, by raising an inference of previous derangement (k). It cannot with truth be contended, that, in all cases, the mere act of self slaughter should be received as complete evidence of madness. There are instances, no doubt, in which this act has been committed by persons in possession of their reason, and who are consequently considered both by the law, and by mankind in general, as highly criminal (1). For this reason, however, it appears to be manifest, that where there are no circumstances to compel an opposite conclusion, the presumption of law, which is always in favour of innocence, must be for the insanity of any self murderer. That this legal presumption is coincident with the fact, in nine cases at least out of ten, probably will not be disputed; but the truth is, that it may be assumed as absolutely certain, in all cases where it can be made out, that there was no reasonable or intelligible motive for suicide. To act in a matter of great and irrevocable importance without any reasonable or intelligible motive at all, is as direct and unequivocal a symptom of insanity, as any that can be suggested; and if a man would be seized and tied for a madman, who, without any apparent motive, should strike or revile a mere stranger, there is evidently much more reason for holding this opinion, if he aim a mortal blow, without provocation, at himself. If a man is condemned to die, and is to suffer a painful and ignominious death to-morrow, it is easy to conceive, that he might terminate his existence to-night, without any suspicion of insanity. If a man is tortured by an excrutiating and incurable disease, his conduct might receive the same solution; and even in cases of a less aggravated description, where a man kills himself because he is plunged from affluence into beggary, because he has incurred indelible disgrace, or has sustained some irreparable injury in his affections, some may be inclined to presume, that he acted rationally, though criminally, and put an end to his life, because he was deliberately of opinion, that these (k) Burrows v. Burrows, 1 Hagg. Eccl. Rep. 109. (1) 4 Bl.Comm. 189. evils were more intolerable than the pain, or the consequences of a voluntary death. 12, It seems that evidence, for the purpose of shewing that insanity had prevailed in some other members of the family of the party whose sanity is questioned, is not admissible. This point arose in a case in the House of Lords, on an appeal from the Court of Session in Scotland, where the validity of a marriage was disputed, on the ground of the insanity of the party at the time it was contracted, when it was attempted on the part of the appellant, in aid of his case of constitutional insanity of the party, to go into evidence of the insanity of some of his relations by his mother's side: but this was resisted by the Commissioners, and also upon review by the Court of Session. One ground of appeal was, that the appellant ought to have been allowed the further proof of the party's insanity, by shewing that it was constitutional in his mother's family, because it was clearly a relevant fact. Lord Chancellor Eldon said, the first question was, whether the party was of sound mind at the time when he entered into the contract? If not, the contract certainly could not be valid; his opinion, however, was, that the party was of perfectly sufficient soundness of mind to form a valid contract; and that would dispense with the consideration of the other very delicate point, whether the evidence to shew hereditary insanity in the blood ought to have been received in a case of this nature (m). In the case last cited, Sir Samuel Romilly is reported to have stated in argument, that, on a trial in the Common Pleas, the heir-at-law offered to prove hereditary insanity against a testator, but that such proof was rejected (n). Admitting insanity to be, in many instances, an hereditary disease, yet, considering the number of other causes by which it is produced, and which can in many cases be satisfactorily ascertained, it would not be just to infer, without other clear evidence, because the ancestor or other relative of a party had been so affected, that the descendant is so also. (m) M'Adam v. Walker and Others, 1 Dow, P. C. 148. (n) Id. 174. |