a rational rule, and one which is likely in most cases to secure the object which the law had in view, viz., that only the instrument which is the true expression of the testator's rational and personal will should be given effect to as his testament.

224. Testamentary Capacity in relation to Delusions.But there are, as we have already seen, a class of insane persons who although they are not really ignorant, from lack of memory or understanding, of the nature of the property they possess, or of the claims of friends and relatives upon them, are undoubtedly insane in relation to certain subjects. A man's conduct, which is the sphere of law, has a wide scope. His doings and transactions, his businesses and his pleasures, are very various. He meets the world, so to speak, in various He is endowed with various senses. He has verious ways. organs, each of which subserve separate uses, and he has various faculties, which have very diverse functions, the one from the other. Thus, it is usual to speak of the cognitive and the conative, and faculties of thought and feelings. A man sees, perceives, apprehends, judges, reasons. And there is the common faculty of memory, which is associated with each of these. Then there are feelings of hatred, envy, love, malice, fear, anger, and the like. Each of these faces of mind has a different relation to the world of sense, and just as a disease of the eye may distort or discolor images which fall upon the retina, without in any way affecting the sense of hearing, so may a disease of brain which affects one of these faculties or feelings, distort some particular class of subjects to the mind. without influencing the correctness of its knowledge and the justness of its judgment in relation to other things. One thing, however, is to be remarked in reference to this matter, and that is, that all diseases of feeling are associated with a certain aberration of the cognitive faculties. A delusion is always a belief, and a belief is only a feeling of certitude which accompanies some of our cognitions. Were this not the case, the error which is entertained in a delusion would be dislodged by proof. But that is the very quality of a delusion, that in relation to it the mind seems shut to the reception of evidence. A delusion has indeed been thus deBR. INS.-6

fined, and for all practical purposes, the definition is good enough: "The true criterion," says Sir John Nicholl, "is where there is a delusion of mind there is insanity; that is, when persons believe things to exist which exist only, or at least in a degree exist only, in their own imagination, and the non-existence of which neither argument nor proof can convince them, they are of unsound mind." It cannot be doubted that when a delusion exists, the mind cannot be said to be sound, if soundness be taken to mean completeness, wholeness, entirety; for it is evident that, in relation to the insane belief, the mind is uusound. But the question whether the existence of a delusion in the mind will necessarily negative the idea of the possession of a "sound mind, memory, and understanding," as these words are used in the court of probate, is quite a different question, and the answer to it does not follow so directly from the answer just given as might be supposed. The object of the law in all cases where the validity of a will is the question in dispute is, as we have seen," to discover whether the individual was in a position to exercise a rational act of volition; whether, to extend that expression, he knew what he was about, and was able to form and express wishes with regard to the disposal of his possessions. But the law has not said, no man who is not in the prime of life shall make a will; it has not said no one whose mind has suffered any diminution of strength shall not make a will; it has not said no one who entertains wrongheaded notions, capricious whims, stupid prejudices, and the like, shall not make a will. It has not said any one of these things. It has not defined disability, except by saying that he only who knows what he is about shall be in a position to dispose of his property in this way. That being so, it follows that the soundness of mind, as used in this court, does not mean the soundness and entirety of mind which would be understood by the term if used in a philosophical sense. In law, then, if he has enough mind to do this thing rationally and willingly, he has a sound mind. Now, can a man with a delusion make a

Dew v. Clark, 3 Addams, 79. In the same case he said: "One of the counsel (Dr. Lushington) accurately expressed it: it is only the belief in facts which no rational person would have believed, that is insane delusion."

* Ante § 23.

rational will-can he know and appreciate his property-can he remember his relations and friends, and can he give due weight to the duties of his situation and to the claims of his friends and neighbors? Experience has taught us that in some cases he undoubtedly can do so, and that in other cases he cannot. Some delusions must affect and color a man's whole intellectual life, while others may be entertained as innocuously to his business and social relations, as a sane man may carry a mole on his leg. Suppose that the only sign of morbid mental action is a belief that the sun does go round the earth, will that affect-can it necessarily or possibly affect a man's family relations, intercourse, and duties? While the world believed it, not as a delusion but as a mistake, did it influence the business connections of men, and did it render the descent of property wayward, unnatural, or irrational? On the other hand, if a man takes an unfounded dislike to the only relative he has in the world, one who, instead of deserving hatred, has done everything which under ordinary circumstances is requited with affection and love; if he believes that his daughter, son, or wife, is in the habit of administering poison with every meal; that they are in the habit of measuring him for his coffin, and entertains like delusions; if he makes a will and gives all his property to a charity for which in life he has shown no interest, or to a friend whose acquaintance he did not seem to prize, is it not evident that the delusions have influenced the disposition, and that, in virtue of that influence, it is not really his will any more than the testament of a sane man who intended to leave his property to his daughter, but who by fraud was induced to believe that she was dead, and left it to quite another person, would be his will. He did will this undoubtedly, but it was only because the real state of the case was kept from his knowledge by the deceit of a third party. So in the case of the insane man, the real state of the case has been kept from his knowledge by disease. This must, we imagine, be held to be the law upon this subject, although there have been differences of opinion. Thus, Lord Penzance said: "A per

This was the case in Dew v. Clark, 3 Addams, 79.

son who is affected by monomania, although sensible and prudent on subjects and occasions other than those upon which his infirmity is commonly displayed, is not in law capable of making a will. * ** For I conceive the decided cases to have established this proposition, that if disease be once shown to exist in the mind of a testator, it matters not that the disease be discoverable only when the mind is addressed to a certain subject to the exclusion of all others, the testator must be pronounced incapable. Further, that the same result follows though the particular subjects upon which the disease is manifested have no connection whatever with the testamentary disposition before the court." On the other hand, in the case of Banks v. Goodfellow," the Court of Queen's Bench held that delusions which are in no way likely to influence the testamentary disposition, delusions which in point of fact have not, so far as can be seen, affected the provisions of the will, are not fatal to its validity. "No doubt, it was said, "when the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should, in the first instance, be made against it. When insane delusion

has once been shown to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property; and the presumption against a will made under such circumstances becomes additionally strong where the will is, to use the term of the civilians, an inofficious one-that is to say, one where natural affection and the claims of near relationship have been disregarded. But where in the result the jury is satisfied that the delusion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no sufficient reason why the testator should be held to have lost his right to make a

Smith v. Tebbitt, 1 L. R. P. 398, at p. 401. See also per Lord Brougham, in Waring v. Waring, 6 Moore P. C. C. 349. See Dr. Ray's Essay on The Angel Will Case, in his Contributions to Mental Pathology, p. 345.

25 L. R., Q. B. 549.

will, or why a will made under such circumstances should not be upheld." We cannot but think that this statement of the law is much more correct than that which we have quoted from Lord Penzance. It is more in conformity with the policy and principles which have been developed in the criminal department of jurisprudence, and which have already been considered. We saw that an insane person was to be held guilty if he did a criminal act which was altogether dissociated from and uninfluenced by his diseased belief. If that is wise and sound law, why should a man suffer from disability as a citizen upon all matters, although these have no connection with his erroneous conception as to facts. We have, too, the satisfaction in feeling that this reading of the law has been adopted up to the present time, and we cannot doubt that the law upon this point may now be regarded as definitely settled. It has long been acted upon in America." These, then, are the principal points which seem to us to demand notice in this place. There are many minor rules with reference to testamentary capacity which it will be necessary to note, but these, as well as the more minute examination and more ample illustration of the rules which we have alluded to above, will be more appropriately dealt with in another place. Here our object is simply to give the reader an accurate but general view of the whole of the science of medical jurisprudence as it has been developed in law; and in relation to the question of testamentary capacity, that has, to our thinking, been done. We pass now to contract.

See also Morrison v. Maclean's Trustees, 27 Feb. 1862, 24 Dunlop, 625; 34 Jur. 311— in which case the Scotch courts decided that a deed disclosing no trace of incapacity or insanity may nevertheless spring from an insane belief or delusion, in establishing which there must be proved both the groundlessness of the belief and the impossibility of its being entertained by any sane mind. It was positively decided, however, that the existence of a disordered belief upon some extraneous point having no connection with the subject, is not fatal to the deed.

See also Boughton v. Knight, 42 L. J., P. 25; Hobson v. Nicholson, author's MS. notes, post.

* See Cotton r. Ulmer, 45 Ala. 378; Johnson v. Moore, 1 Litt. (Ky.) 371; James v. Langdon, 7 B. Mon. 193; Boyde. Eby, 8 Watts 71; Crum v. Thornley, 47 Ill. 192; Leech v. Leech, 4 American Law Journal, 179; Addington v. Wilson, 5 Ind. 137; Thompson v. Thompson, 21 Barbour, 107; Durham's Appeal, 27 Conn. 192; Boardman v. Woodman, 47 N. H. 120; Turner v. Hand, 3 Wall. Jr., 120; American Seamen's Friend. Soc. v. Hopper, 43 Barb. 625; 33 N. Y. 619: Lucas. Parsons, 24 Ga. 640; Gass v. Gass, 3 Humph. 278; Thompson v. Quimby, 2 Bradf. Sur. 444; Clapp v. Fullerton, 34 N. Y. 190; Hall v. Hall, 38 Ala. 131.