stand the business in which he was engaged; but, in case the subscribing witnesses are dead or cannot be produced, the proponent of the will can rest upon the presumption that every man is presumed to be sane until some evidence to the contrary is offered. (63 N. Y. 409, 7 Pick. 94.) Where, however, a party has been proved to be insane, the presumption is that it continues, and the burden then shifts to the party alleging sanity (Am. & Eng. Encyclopædia, vol. xi., p. 160), and he must prove that the will was executed during a lucid interval.

All

It will at once be perceived in this class of cases that a great many questions arise as to the kind and degree of insanity, and how much influence it had upon the testator in the making of the will. The insanity may be chronic or acute, or it may be the result of disease or accident. It has been held that extreme old age, excessive use of intoxicating liquor, strong beliefs, existence of mental delusions, licentiousness, and unreasonable prejudice against relatives are not necessarily incompatible with mental capacity or intelligence to make a will. (Same volume of Am. & Eng. Encyclopædia, supra, p. 154, note, and cases there cited.) of these matters may be proved in opposition to the probate of a will, and the question will be to what extent, if any, they influenced the testator in the making of his will, or to what extent the testator was disabled by them from complying with the rule heretofore stated. In this connection it may be stated that reasonableness of the provisions of a will is always an element for consideration in determining the question of testamentary capacity; but the mere giving of property to a stranger rather than relatives, without more evidence of want of testamentary capacity, is not sufficient to break a will. It is always to be observed that the highest degree of mental soundness is not required to constitute capacity to make a will. "A person's mind may be impaired by grief, disease, melancholy, old age, strange beliefs, vice, or intemperance; yet, if he has sufficient ability to weigh and consider the act of making the will and its surrounding circumstances, it will be valid." (Am. & Eng. Encyclopædia, vol. xi., p. 152 and note.)

It is to be observed that the law regards with great tenderness the right of a person to make a will; one of the strongest considerations is that he is the owner of the property and has the natural right to dispose of it as he sees fit. Again, as was said by Chancellor Kent, "The control which the law gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attention due to his infirmities." (Van Alst vs. Hunter, 5 Johns Ch., N. Y., 160.)

The law also requires less mental capacity to make a will than for making a contract. It is presumed that most persons have meditated upon the subject of the disposition of their property, and are better prepared when making their wills to declare their intentions than to comprehend new business. The capacity required has reference to the business in hand, so that the same degree of capacity to dispose by will of a small and simple property is not required as in case of a large and complicated estate and many objects of bounty. (Sheldon vs. Dow, 1 Dem., N. Y., 503.)

INSANITY AS AFFECTING CONTRACT OF MARRIAGE.

The same rule that would apply to contracts in cases of insanity will apply to marriage, so that a party so insane as to be incapable of making

a valid contract concerning property cannot make a valid contract of marriage. It should be proved, to make such a contract invalid, that the party had not a rational idea of the marriage contract and the relations and duties incident to married life. "Mere weakness of understanding will not invalidate a marriage, nor will insanity that does not affect the subject-matter of the contract."

Where it clearly appears that a person has married an insane person in ignorance of the fact, the contract will be declared void, for the contract if void as to one party is as to both (Am. & Eng. Encyclopædia, vol. xi., p. 140, notes 1, 2, 3); and any party interested may institute proceedings to procure a decree of nullity.

There is a sharp conflict of authorities in the various States whether the marriage of an insane person is void ab initio, so that it may be impeached collaterally. In Wightman vs. Wightman, Chancellor Kent held that such a marriage was absolutely void and no decree of nullity was necessary to set it aside.

The cases that arise under this branch of medical jurisprudence require great care and circumspection on the part of the medical expert. A majority of the cases arise from imbecility and epilepsy, and the great question relates to the degree of incapacity. (Am. & Eng. Encyclopædia, vol. xi., p. 141, note 1.) The history of the party up to the time of the marriage, the surrounding circumstances, are material considerations.

A judge of the Supreme Court of Massachusetts trying such a case made the remark "that the fact of a party's being able to go through the marriage ceremony with propriety was prima facie evidence of sufficient capacity to make the contract." It will be at once recognized by the expert that such a rule is not of universal application. It is not a sufficient test of capacity that either a man or woman who has been well brought up behaved in company well for a short time, as such behavior may have become more or less automatic from habit. A careful personal examination, if practicable, should be had, and the character, disposition, strength of will, should all be taken into consideration.

In cases of weak-minded persons questions of force or undue influence upon the will may also become important. Of course it is well known that any insanity or imbecility that has occurred since the marriage furnishes no ground for a divorce. It was held by the Supreme Court of Vermont that insanity was a good defense to a libel or suit for divorce based upon a charge of adultery, the theory being that there is an absence of a consenting will; this doctrine has been disputed in some States, notably Pennsylvania; but the weight of authority is that insanity furnishes a valid defense in such cases. (See Bradstreet vs. Bradstreet, 7 Mass. 471; Matchin vs. Matchin, 6 Penn. 332.)

Á lunatic is liable civilly to make a compensation in damages to persons injured by his acts. Thus, for assaults, slander, or libel, an action can be maintained; but the fact of insanity can be shown in mitigation of damages in the two latter classes of cases on the ground that the words spoken or written could not have an injurious effect of much consequence, varying according to the degree of insanity and the notoriety of the lunatic's condition. In such cases it is for the jury to determine according to the effect of the acts of the lunatic what is a fair measure of damages. (Am. & Eng. Encyclopædia, vol. xi., p. 144, note, and cases there cited.)

A question often arises as to the competency of an insane person to testify in court. It is a matter for the court to determine. The rule by which the court is guided is as follows: "In order to be competent the person must be possessed of such an understanding as enables him to retain in memory the events of which he has been a witness, and gives him a knowledge of right and wrong sufficient to appreciate the sanctity and binding force of an oath. (Am. & Eng. Encyclopædia, vol. xi., p. 145, note, and cases cited.)

INSANITY AS AFFECTING CONTRACTS.

As a general rule it requires a higher degree of capacity to make a contract than a will, depending somewhat upon the nature of the transaction, i.e., the complexity of the subject-matter. The most common cases relate to deeds, commercial paper, and partnership. The deed of an insane person is either void or voidable. It is void when given by an insane person for whom a committee has been appointed in whom his estate is vested. In all other cases it is voidable. In order to invalidate a deed of an insane person the suit must be instituted by the grantor after he is restored to reason, or by his committee or guardian, or by his executor, administrator, or heirs. (Am. & Eng. Encyclopædia, vol. xi., p. 149.) These rules apply to all persons non compos mentis or labor ing under delusions. All the authorities upon this subject, and upon ratification and executing contracts for the sale of land, are to be found in the same volume before mentioned, at pages 150 and 151.

It may be stated that the insanity of a maker or indorser of a promissory note may be set up as a defense to an action upon the note by the payee or any persons having notice of such disability, or of such facts as would put a reasonable man upon inquiry as to the competency of the maker or indorser. But where the insane party has received full consideration, and the note inured to his benefit, and it has passed into the hands of a bona-fide purchaser without notice, insanity is not a defense to the note. It has been held, however, that an accommodation indorser of a promissory note who receives no benefit therefrom, either to himself or his estate, may defend on the ground that he was non compos mentis at the time of the indorsement, and this though the holder had at the time of the transfer to him no knowledge of the indorser's insanity. (Am. & Eng. Encyclopædia, vol. xi., p. 144.)

INSANITY AND CRIME.

BY

B. SACHS, M.D.

A FEW years ago the writer of this article was discussing with one of the learned judges of the Superior Court of New York the question of the responsibility of the insane. The writer stated his opinion that up to the present time the legal tests of insanity, as accepted in many of our States and in England, were entirely unsatisfactory. The judge dissented from this view and thought the matter a very simple one. "All we have to do," said he, "is to determine whether the accused at the time he committed the crime was able to distinguish between right and wrong, and if he knew that what he had committed was wrong he was as responsible for that crime as any sane person would be."

Very few legal minds have been able to get beyond this antiquated view of the relation of insanity to crime. In Germany and France the more enlightened judges have been guided by the opinion of medical experts, but even there they are not in anywise bound by such an opinion, and it has happened again and again that the judge, having asked for and received the opinion of medical experts, has promptly set it aside and decided the question to the contrary.

In England and in this country, unfortunately, the question of insanity, and of mental responsibility for crimes committed, is referred to a lay jury. Judges and laymen acquiesce in the belief that a body of twelve, often ignorant men, can decide the question of mental responsibility, which under favorable circumstances may baffle the ingenuity of the most conscientious medical expert. England and America have been under the influence of the decision which the English judges gave in answer to certain questions which were propounded to them by the House of Lords in 1843, after the atrocious murder of Mr. Drummond by McNaughton. Maudsley, whom I follow in this matter, summarizes the answer as follows: "To establish a defense on the grounds of insanity it must be clearly proved that at the time of committing the act the party accused was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong." It will be seen from this quotation that the accused person was not expected to be able to distinguish between. right and wrong in general, but that he was at least to know whether the special act which he committed was right or wrong, or that he was to be entirely ignorant of the nature of the crime committed. This "right" or "wrong" test has been the stumbling-block in the advance of