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."

Little or no exception has, so far as we are aware, been taken to Lord Thurlow's definition, but much has been said as to the want of precision of the text laid down in the latter case by the Court. Thus Dr. Lushington in one case said: "In the opinion of a very great Judge, Sir William Wynne, in the celebrated case of Cartwright v. Cartwright, he said where a rational act was done in a rational manner, such was the strongest and best proof which could arise as to a lucid interval. Now, I cannot say that I subscribe altogether to this observation of Sir William Wynne, for I do not, but it is entitled to great weight; and to a certain extent a rational act done in a rational manner, though not I think the strongest and best proof of a lucid interval, does contribute to the establishment of a lucid interval."

It is evident that many insane persons can do rational acts with perfect rationality, and that when no one could pretend that there was a lucid interval between the paroxysms of the disease. That the rationality of the act, and the rational manner in which it was performed, might be a test as to the possession of sufficient mind to enjoy the privilege of disposing of property by will, is certainly true. But the use of the term lucid interval made use of by the learned Judge in this case is not warranted either by medical opinions or by legal opinions, either before or after his time. In Nichols v. Binns, it was decided that where a person afflicted with habitual insanity, with intermission, makes a will the fact that the will is a rational one and made in a rational manner, though not conclusive, is a strong evidence of its having been made in a lucid interval. Take, for instance, some of the de

precedes and follows it, and to use another image, it is not a deceitful and faithless stillness which follows or forebodes a storm, but a sure and steadfast tranquillity for a time, a real calm, a perfect serenity; in fine, it must not be a mere diminution, a remission of the complaint, but a kind of temporary cure, an intermission so clearly marked as in every respect to resemble the restoration of health."

Bannatyne v. Bannatyne, 16 Jur. 861.

* 1 Sw. & Tr. 239; Carpenter v. Carpenter, 8 Bush (Ky.) 283. See The Lord Advocate v. Smith & Campbell, 2 Irvine, 1.

[298].

cisions of Sir John Nicholl. In a case in which a medical man who had seen the testator frequently, and deposed that on no occasion did he manifest any symptoms of insanity, but "conducted himself and talked and discoursed in a rational manner, and was in full possession of his mental faculties," Sir John Nicholl decided that the proof of a lucid interval was not sufficient, and that, although in the testamentary acts there was nothing to show that the testator was not of sound mind; and in giving judgment Sir John Nicholl said: "It is clear that persons essentially insane may be calm, may do acts, hold conversations, and even pass in general society as perfectly sane. It often requires close examination by persons skilled in the disorder to discover and ascertain whether or not the mental derangement is removed and the mind again perfectly sound. When there is calmness, when there is rationality on ordinary subjects, those who see the party usually conclude that recovery is perfect. Where there is not actual 98 recovery, and a return to the management of himself and his concerns by the unfortunate individual, the proof of a lucid interval is extremely difficult." In another case the same learned Judge said: "I am not able exactly to understand what is meant by a lucid interval; if it does not take place when no symptoms of delusion can be called forth at the time, how but by the manifestation of the delusion is the insanity to be proved to exist at any one time? The disorder may not be permanently eradicated; it may only intermit. It may be liable to return, but if the mind is apparently rational on all subjects, and no symptom of delusion can be called forth on any subject, the disorder is for that time absent. There is then a lucid interval, if there be such a thing as a lucid interval, because it is difficult to ascertain the total absence of all delusions."2 Now, all this difference of opinion indicates a difficulty connected with the subject; and experience proves that there is much difficulty in ascertaining when a lucid interval is really present."

Groom and Thomas v. Thomas and Thomas, 2 Hagg. Ecc. Rep. 433. See also White v. Driver, 1 Phillim. 84. See Clarke v. Lear, cited 1 Phillim. 119. 2 Wheeler v. Alderson, 3 Hagg. Ecc. Rep. 599.

See Jarman on Wills, vol. i., p. 32; Waring v. Waring, 6 Moo. P. C. C. 341; 12 Jur. 947; Creagh v. Blood, 2 Jones & Lat 509; Dyce Sombre v. Troup, 1 Deane & S. 22.

394. The Proof of a Lucid Interval in cases of Idiocy or Dementia.-The rule of law with reference to proof of a lucid interval in the course of disease which is marked by the absence of mind, is somewhat different from that which is in force with reference to the remissions of those diseases which are derangements. In these, it holds that the fact that intelligent acts have been done negatives the possibility of the absence of mind, and consequently in such cases a rational act done in a rational manner would be a sufficient proof of a lucid interval. In one case, the evidence showed that the deceased was in 1815 placed in confinement as an idiot, and there remained till 1817, when he was released. In 1820, about which time he was proved to have committed certain rational acts of business, he made a rational will. In 1822, he was again placed in confinement, and so remained until his death in 1849. In 1833, he was found, on a commission, to have been of unsound mind without lucid intervals since 1815. In this case, the will was sustained on the ground that though it was otherwise with regard to lunacy, yet, when idiocy is set up, it is disproved by contemporaneous intelligent acts of business.'

3

395. The Burden of Proof.-Where habitual insanity has existed, the presumption of law is that he was insane at the time of making a will, and the burden is upon those who are seeking to establish the fact of a lucid interval. "If you can establish," says Sir William Wynne, as cited by Jarman, "that the party afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved is sufficient, and the general habitual insanity will not affect it; but the effect of it is this, it inverts the order of proof and presumption, for until proof of the habitual insanity, the presumption is, the party agent, like all human creatures, was rational; but when an habitual insanity of the mind of the person who does the act is established, then the party

Bannatyne v. Bannatyne, 16 Jur. 864.

State v. Reddick, 7 Kans. 143; and Carpenter v. Carpenter, 8 Bush (Ky.) 283. 31 Jarmin on Wills, p. 67. See also Carpenter v. Carpenter, 8 Bush (Ky.) 283.

who would take advantage of the fact of an interval of reason must prove it." And in Smith v. Tebitt,' it was decided that if a diseased state of the mind is once proved to have established itself, it will be presumed to continue, and the burden of showing that health has been restored falls upon those who assert it. On these principles, then, it is necessarywhen it is desired with the view of establishing the testamentary capacity of a testator by the proof of a lucid interval at the time of the execution of the will-to show not merely a remission of the disease, not merely a cessation of the more violent symptoms, but to prove a restoration of the faculties at the very period of execution. It is not, however, necessary to show that the restoration is complete, and that the mental power is in every respect as great as it was before. All that the law demands is, as we have seen, proof of a disposing mind.

3

2396. The Law with regard to Acts done during Lucid Intervals. The remarks made in another place will show in how many cases individuals who are quite insane have a power of concealing their insanity, and if the difficulty is great in such cases, it is, perhaps, greater in determining the condition of mind which has been defined above. When, however, its existence is admitted or satisfactorily proved, there is no question as to the legal consequences. The law which looks upon a lucid interval as a shorter period of intermission between two attacks of insanity, and which regards intermission as a return to sanity, just as the intermission in an ague fit is a return to health, cannot regard the insane per

11 L. R., Probate, 398.

2 In White . Wilson, 13 Ves. 87, Erskine, C., said: "Where the party has ever been subject to a commission or to any restraint permitted by law, even a domestic restraint clearly and plainly imposed upon him in consequence of undisputed insanity, the proof showing sanity is thrown upon him; on the other hand, where insanity has not been imputed by relations or friends, or even by common fame, the proof of insanity, which does not appear to have ever existed, is thrown upon the other side; which is not to be made out by rambling through the whole life of the party, but must be applied to the particular date of the transaction."

3 Hall v. Warren, 9 Ves. 6111; Holyland Ex parte, 11 Ves. 11 Hadn v. Hays, 9 Penn. St. 151.

Holyland Ex parte, 11 Ves. 11.

son with a lucid interval in any other light than as a person of sound mind. As this is the case, the greatest caution is necessary in determining the actual existence of this state, and careful examination must be made, and very little reliance is to be placed upon the opinion of friends or relatives in such a case. Even in the commencement of insanity little is to be satisfactorily gathered from the stories of relatives who, in many instances, have most limited powers of observation, and are [200 very long before they can associate the idea of somewhat odd conduct with the idea of insanity in a person they have all along regarded as sane. That extra caution is required in the case of a lucid interval when the character of an act has to be determined, will be evident when we remember that as it is ex hypothesi, an intermission of short duration, it is most difficult to predicate when it will come to an end and what acts are influenced by the returning morbid conditions. It is also well to bear in mind that although an insane person during a lucid interval is to be regarded for all the purposes. of law as sane, he must, for many obvious reasons, be regarded as a person very liable to go insane, and in that respect as mentally inferior to what he was before he suffered from the disease at all. The acts of such a person should be carefully looked at, just as the acts of one who is proved to have a strong hereditary taint of insanity would excite a suspicion of possible insanity if they resembled the acts ordinarily done by persons of unsound mind. Thus, we find that in criminal courts there is a reluctance to convict an individual who has committed a criminal act during a lucid interval, and this reluctance is worthy of the better name prudence. For, although an individual may, during such a remission of mental disease, commit an act for which he is really in strictness responsible, and although he may be at his trial in such a state of mind as to be capable of instructing solicitors and pleading, still, with the certainty of recurring insanity before them, the jury are right in not subjecting an individual to prison discipline, which might aggravate or confirm his malady, while the discipline and treatment of an asylum

The American law is the same in this respect; Wright v. Lewis, 5 Rich, 212; Gangwere's Estate in re, 11 Penn. St. 417; Gombault v. Public Administrator, 4 Bradf. Sur. 226. See also Fulleck v. Allinson, 3 Hagg. 527; Clement v. Rhodes, 3 Add. 37 BR. INS.-35