ferent from that of ordinary individuals. Seven medical witnesses were summoned to support the commission, and each of them deposed that she was of unsound mind. The commissioners, however, had recourse to Drs. Morrison and Haslam, who visited her, and who came to the conclusion that she was neither imbecile nor idiotic, and that her inability to manage her affairs arose from ignorance. She was aware of her deficiencies, and deplored her ignorance of arithmetic, and explained it on the ground that her grandfather had been too ready to send excuses for idleness when she was at school. Her conversation generally impressed Drs. Haslam and Morrison with a belief in her sanity. The jury, by a majority of twenty to two, returned a verdict that [Miss Bagster had been of unsound mind since November, 1830, and the marriage was consequently dissolved.1

2

The case of the Countess of Portsmouth v. the Earl of Portsmouth, which was a suit for the dissolution of marriage on the ground that the earl was of weak and afterwards of unsound mind, is instructive. It was decided in this case that a marriage de facto solemnized under circumstances of clandestinity, inferring fraud and circumvention between a person of weak mind and the daughter of a trustee or solicitor, (who had great influence over him, and by whom he was clearly considered and treated as of unsound mind,) was null and void.

Many persons testified to their belief that Lord Portsmouth was of "sound mind, and capable of conducting the ordinary transactions of life;" but they admitted that his lordship was a "weak man." At school he was deficient, and not like other boys; he was cowardly, yet he was not incapable of instruction, and had an excellent memory. He acquired some languages, and displayed considerable proficiency in arithmetic. He certainly was not regarded as an idiot. When he came of age he joined his father in suffering a recovery and in making a new settlement of the family estates. In 1799 he married Miss Grace Norton, and by a settlement

'See London Medical Gazette, vol. x., pp. 519--553; London Atlas Newspaper, July 8 and 15, 1832.

then made, his property was placed in the hands of trustees. In 1802 he was deemed capable of giving evidence in a court of justice, but it was a matter of surprise, and some conversation, that he made so creditable an appearance upon that occasion, which proves that public opinion had inclined to the belief that he was of weak mind. It was proved that he was able to conduct himself with much propriety under restraint and checks, such as are imposed by the presence of other individuals; and that he had personal feeling of shame or self-respect which even very weak-minded persons are not entirely without. Further, it was proved that his servants were his playfellows in town and country; that he played all sorts of tricks with them; that he was fond of driving a team with which he carted dùng, timber, and hay; that he was cruel to the horses; that he was fond of bell-ringing with a view to earning the paltry remuneration; that he took delight in slaughtering cattle. He had delusions respecting lancets, and tapes, and basins in women's pockets. He was proved, even when he had attained the age of forty, to have flogged an old bailiff who was twenty years older than himself. One feature in his character which was dwelt upon was his timidity and his liability to be controlled. It is a symptom of all weak minds. Only the great man is brave: the weak are always cruel and cowardly. It was owing to this circumstance that Mr. Hanson, his trustee and confidential solicitor to the family, acquired ascendancy over him. The earl married one of Mr. Hanson's daughters.

Sir John Nicholl, in giving a very able judgment, observed: "The law in the case admits of no controversy, and none has been attempted to be raised upon it. When a fact of marriage has been regularly solemnized, the presumption is in its favor; but then it must be solemized between parties competent to contract, capable of entering into that most important engagement, the very essence of which is consent; and without soundness of mind there can be no legal consent-none binding in law: insanity vitiates all acts. That considerable weakness of mind circumvented by proportionate fraud will vitiate the fact of marriage, whether the fraud is practiced on his ward by a party who stands in the relation of guardian,

as in the case of Harford v. Morris,' which was decided principally upon the ground of fraud; or whether it is effected by a trustee procuring the solemnization of the marriage of his own daughter with a person of very weak mind, over whom he has acquired a great ascendancy. A person incapable from weakness of detecting the fraud, and of resisting the ascendancy practiced in obtaining his consent to the contract can hardly be considered as binding himself in point of law by such an act. At all events, the circumstances preceding and attending the marriage itself may materially tend to show the contracting party was of sound mind, and was so considered and treated by the parties engaged in fraudulently effecting the marriage. In respect of Lord Portsmouth's unsoundness of mind, the case set up is of a mixed nature, not absolute idiocy, but weakness of understanding; not continued insanity, but delusions and irrationality on particular subjects. Absolute idiocy or constant insanity would have carried with them their own security and protection; for in either case the forms preceding and the ceremony itself would not have been gone through without exposure and detection. But here a mixture of both, by no means uncommon, is [set up-considerable natural weakness, growing, at length, from being left to itself and uncontrolled, into practices so irrational and unnatural as in some instances to be bordering upon idiocy, and in others to be attended by actual delusion-a perversion of mind, a deranged imagination, a fancy and belief in the existence of things which no rational being, no person possessed of the powers of reason and judgment, could possibly believe to exist."

And in concluding his remarks, he said: "A marriage so had, wants the essential ingredient to render the contract valid the consent of a free and rational agent. The marriage itself and the circumstances immediately connected with it do not tend to establish restored sanity: it was neither a 'rational act,' nor was it 'rationally done:' the whole 'sounds to folly,' and negatives sanity of mind. The Hansons, in the mode of planning and conducting the transaction, show that they treated and considered Lord Portsmouth

11 Haggard's Consistory Reports, 61.

as a person of unsound mind, and Lord Portsmouth, in submitting, acquiescing, and not resisting, confirms his own incompetency. Even if no actual unsoundness of mind, strictly so called-if no insane derangement had existed-if only weakness of mind, and all admit he was weak, yet, considering the passiveness and timidity of his character, on the one hand, the influence and relation of Hanson as his trustee, on the other, and the clandestinity and other marks of fraud which accompanied the whole transaction, I am by no means prepared to say that without actual derangement in the strict sense the marriage would not be invalid; but in my judgment Lord Portsmouth was of unsound mind, as well as circumvented by fraud."

294. The Capacity of Imbeciles to make Wills.-We have seen that there is a contest of authority as to whether it requires more mind to enter into a contract or to make a will, and we need not reopen the question in this place; but it is well to remember, and therefore cannot be too often impressed, that it does not require colossal intellect, or perfect health, or a well-regulated mind, or anything like moral perfection, to entitle a person to dispose of his property by an instrument which is to have effect after his death. The law in relation to this matter has been well stated by Cockburn, C. J., where he says: "It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause, namely, from want of intelligence occasioned by defective organization, or by supervening physical infirmity, or the decay of advancing age, as distinguished from mental derangement-such defect of intelligence being equally a cause of incapacity. In those cases, it is admitted that though mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains." Here, then, we have a definite rule applicable to all cases where weakness of mind might seem to indicate a loss of testamentary capacity. Did the testator know what he was doing; did he appreciate what

Banks v. Goodfellow, 5 L. R., Q. B. 546, at 567.

were the objects about to be effected by the instrument in execution; did he know his relations to those who were of his own blood, or to those who had been on terms of intimacy or friendship with him; could he rationally make up his mind to a course of conduct--then he could make a will. It matters not that the person has been regarded as an imbecile by many of those who were brought into contact with him; that he was actually of weak mind, infirm of purpose, and ruled by prejudice. If he understood what he was doing, and meant to do it, then he was by law entitled to do it.' In the case of Banatyne v. Banatyne,' in which the validity of a will was contested, Dr. Lushington said: "I must bear in mind what the nature of the case set up in opposition to the will is. I must repeat that it is not lunacy-it is not monomania-it is not any species of mental disorder, the symptoms of which it may, at periods, be difficult to detect; but the case presented is that of idiocy or imbecility, the characteristic of which is permanence, with little or no variation, though often, in case of idiots, it does happen that there will be a greater degree of excitement demonstrated than at other periods. How is such a case to be met? I apprehend that to meet it, and to show that such a state of things did not exist at any given period, proof of acts of business are most important evidence. Many acts of evidence could possibly. be done by a lunatic and the lunacy not detected; but it is scarcely possible to predicate the same of an idiot or lunatic, or imbecile person. I shall look, therefore, in the first instance, to the acts of business. It is proved by Mr. Falkner that the deceased kept an account with Messrs. Tuckner, at Bath, for four years, from 1818 to 1821, and during all that period occasionally drew drafts, and all these drafts were paid to himself over the counter. According to the evidence, the deceased came himself to the counter, and there is no

1 Boughton v. Knight, 42 L. J., P. & D. 25; Blanchard v. Nestle, 3 Denio, 37; McMaster v. Blair, 27 Penn. St. 298; Andress v. Weller, 2 Green Ch. 604; Butlin v. Barry, 1 Curteis, 614; Horne v. Horne, 9 Iredel, 99; Converse v. Converse, 21 Vt. 168; Posts v. House, 6 Ga. 324; Stubbs v. Houston, 33 Ala. 555; Watson v. Donnelly, 28 Barb. 653; Parish v. Parish, 42 Barb. 274; Daniel v. Daniel, 39 Penn. St. 191; Thompson v. Kyner, 65 Penn. St. 368; Roe v. Taylor, 45 Ill. 485; Lilly v. Waggoner. 27 Ill. 395.

216 Jur. 864.