question as to his sanity and competency: See ante, § 22; 2 Gr. Ev., § 371; 1 Best on Ev., §§ 147, 150; Foreman's Will, 54 Barb. (N. Y.) 274; Seaman's Friend Soc. v. Hopper, 33 N. Y. 619; Duffield v. Morris, 2 Harr. (Del.) 375; see also Wills, vol. 5, Field's L. B., §§ 727, 729; Banks v. Goodfellow, 5 L. R., Q. B. (Eng.) 549; Hovey v. Chase, 52 Me. 304; Clapp v. Fullerton, 34 N. Y. 190; Boardman v. Woodman, 47 N. H. 120; Stackhouse v. Horton, 15 N. J. Eq. 202; Taylor v. Kelly, 31 Ala. 59.

It is not every degree of unsoundness of mind which will take away the capacity for testamentary disposition. But where insane delusion and mental unsoundness has been shown to exist in a person, a presumption might properly arise against his competency to make a will: Rogers v. Walker, 6 Pa. St. 371; 47 Am. Dec. 470. "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 in which natural affection and the claims of near relationship have been disregarded. But where, in the result, a jury are satisfied that the delu

sion has not affected the general faculties of the mind, and can have had no effect upon the will, we see no reason why the testator should have lost his right to make a will, or why a will made under such circumstances should not be upheld:" Cockburn, C. J., in Banks v. Goodfellow, 5 L. R. Q. B. (Eng.) 549; see also Stanton v. Weatherwax, 16 Barb. (N. Y.) 259; Hovey v. Chase, 52 Me. 304; Boardman v. Woodman, 47 N. H. 120; Clapp v. Fullerton, 34 N. Y. 190; Stackhouse v. Horton, 15 N. J. Eq. 202; Trumbull v. Gibbons, 22 N. J. L. 117; Taylor v. Kelly, 31 Ala. 59. As in other cases involving capacity, the questions to be determined are whether the testator had sufficient memory to recall his property, and those upon whom his bounty should confer it, and sufficient mind to construct a will with a due understanding of the business then in hand, and in the manner in which he desired his possessions to be distributed 1 Jar. on Wills (5th Am. ed.), 94; Clark v. Fisher, 1 Paige (N. Y.), 171; Higgins v. Carleton, 28 Md. 115 Yo: v. McCord, 74 Ill. 33; Lowder v. Lowder, 58 Ind. 538; Quaine's Dic. of Med. (Am. ed.), topic Wills, p. 260; 5 Field's L. B., § 727; 6 id., § 435.

§ 44. Conduct and declarations of the testator.

The conduct and declarations of the testator before and after the execution of the will are held to be competent evidence if they tend to show unsoundness of mind or undue influence at the time of the execution, but not otherwise: Boylan v. Meeker, 28 N. J. L. 224; Kinne v. Kinne, 9 Conn. 104. So a sudden change of common and usual to eccentric and peculiar habits will frequently furnish very cogent evidence of insanity: Lucas v. Parsons, 27 Ga. 593. But it has been held that suicide is not conclusive evidence of it: Brooks v. Barrett, Pick. (Mass.) 94; Burrows v. Burrows, 1 Hagg. (Eng. Eccl.) 109, 146.

§ 45. The test of capacity to manage business.

"In the majority of cases of imbecility there is no difficulty in deciding on the competency of the individual to take care of his own affairs, to form contracts, to devise property; but in a few cases, and especially when the subject of inquiry has been intrusted with or consulted about the management of his affairs, the question is not so easy. But a comparison of the existing with the former state supplies a simple and obvious test. The tests of capacity usually recommended in

of mind.

cases of imbecility are obviously insufficient to determine whether or not a man is capable of managing his own property. The arithmetical test, on which so much stress has been laid, is a test of knowledge, not of power. A man may be the best accountant in the world, but he may be a moral imbecile, and have so mean a sense of right, so childish a fancy, so weak a will, that from infancy to age he may yield to every impulse, and gratify every whim, without once counting the cost. A patient of our own, with whom we had been intimate for years, owed pence as a child, and pounds as a boy, and added debt to debt with each year that passed over his head, till at length a severe disappointment brought on a distinct attack of mania, of which a benevolent but extravagant mission, violent outbursts of passion, fierce hatreds, arrangements to spend a year's income in a week, and the unfounded expectation of an immense fortune on the morrow, were constituent parts. He carried with him to an asylum a host of delusions, and died in the firm conviction that he was the Saviour of mankind. In this case there was the cultivated and refined intellect of a man with

more than the weakness of a child; but no test could have proved him incapable of managing himself and his affairs, save only the history of his life. The criminal acts of persons of weak intellect are as strongly marked by folly as their words and actions. They have no surer characters, and we no better trust. But in this case, as in that of maniacs, the law insists upon the test of a knowledge of right and wrong, which is as insufficient in criminal as the arithmetic test in civil cases. It is the test of knowledge, not of power; and the knowledge of right, and the power to act aright, are as distinct as science and art: "Guy & F. on For. Med. (5th ed.) 209; see also McCurry v. Hooper, 12 Ala. 823; 46 Am. Dec. 289; see also Foster v. Means, 1 Spear Eq. (S. C.) 569; 42 Am. Dec. 332.

It has been held that a kind or degree of insanity which would not excuse a person for a criminal act may render him legally incompetent to manage himself and his affairs: Bellingham's Case, 5 C. & P. (Eng.) 168.

On this question Mr. Mandsley says: "If a person is incompetent to manage property, it is because he has lost some portion of his mental