PROOFS OF UNSOUNDNESS OF MIND.

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lays him open to be imposed upon by the artful and designing; and our conclusion regarding his competency must therefore be the result of a just appreciation of his general knowledge of affairs derived from an examination of all his faculties. We have to consider how far his imperfect mind would prevent him from attending to his own interests, not in a manner which would insure their most profitable application, but in such a way as would prevent his affairs from being involved in ruin. His knowledge and understanding may be so imperfect that his property would necessarily run to waste under his unassisted control. When it is proved that there has been habitual submission to the dictation of others, either from a long habit of being controlled, from indifference or fearwhen a man has allowed himself to be disobeyed or neglected by his servants, and to be openly cheated by tradesmen-these circumstances furnish evidence of weakness of mind and a justification of the opinion that there should be interdiction. On the other hand, if a person when left to himself has managed his affairs with reasonable care and propriety, and has acted independently of others, there can be no stronger proof of his legal competency.

The testamentary capacity of imbeciles may be tried by the same rules. A man who is of such an easy disposition as to be improperly influenced in the use of his property while living, may be equally influenced by fear or control to make an improper disposition of it by his will; but in this case the terms of the will, if drawn up by himself, will allow a fair judgment to be formed of the mental soundness of the testator. There is on these occasions a method of testing the state of mind which has been suggested by Conolly-namely, by inducing the patient to express his thoughts in writing, as in a letter addressed either to his physician or to some confidential friend. This plan would probably often succeed in showing the existence of a delusion, when an oral examination would wholly fail; the patient would not be led to suspect that he was being subjected to an examination for a hostile purpose. The current of his

thoughts would be uninfluenced by the suspicion that the act of writing was to test the state of his mind; and as no man can long write in a connected manner who does not think collectedly, so we may expect to find ample evidence whether a delusion really exists in his mind or not. There are cases recorded in which the evidence of delusion has been derived from the terms of a will or deed written or dictated by the lunatic himself, when there was great difficulty in obtaining proof by an oral examination. In idiocy there is no capacity for writing. In dementia, as there is no memory, it commonly happens that the same word is written over and over again. No person in a state of dementia can write a connected sentence, because, before the last part of the sentence is completed, the first is forgotten. In imbecility we may meet with every variety of mental defect, but the state of the mind is generally well shown by the expression of the thoughts in writing. This method, it must be remembered, cannot show whether or not a person is capable of managing his affairs; it is a mere index of a certain state of mind, and must be coupled with general habits and conduct, before any conclusion is drawn from it relative to the propriety of interdiction. It will often serve to detect the existence of a delusion when other means fail. Winslow attached some importance to handwriting as foreshadowing the occurrence of general paralysis with softening of the brain. This, however, refers not so much to composition or style as to correct writing and spelling. The reader will find a complete essay on the writings of the insane, and the medico-legal conclusions to which they lead, by Marcé, in the Ann. d'Hyg., 1864, t. 1, p. 379.

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PROOFS OF UNSOUNDNESS OF MIND.

When a verdict of insanity is returned under a Commission, it must always represent the person to be of unsound mind, and by reason of that unsoundness to be incompetent to manage his affairs. A date must be fixed at which the insanity first appeared, and this date should always be anterior to the issuing of the Commission. If there are lucid intervals, the space of time occupied by these should also be defined.

Among cases well calculated to show the conflict of medical evidence on Commissions in Lunacy, is that of W. F. Windham (Dec. 1861). Fifteen of the relatives of this gentleman petitioned for an inquiry into his state of mind, on the ground that he labored under congenital deficiency of intellect (imbecility), and this view was supported by strong medical opinions; on the other side, it was alleged that the mental condition of Mr. Windham, if below the normal standard, was merely the result of a neglected education. The inquiry lasted thirty-three days, during which 140 witnesses were examined-namely, fifty on the part of the petitioners, and ninety in favor of Mr. Windham, at a cost of about 30,000l. There was no proof of the want of opportunity of education, but strong reason to believe that the alleged imbecile had not, like other boys of his age, made use of the advantages which he had enjoyed. He had been sent to Eton, but had derived little benefit there. It seems to have been admitted that, as a boy, he was wholly unlike other boys, and when he attained his majority, in Aug. 1861, his conduct was extravagant, wild, and quite inconsistent with his social position. At the same time, he was not entirely deficient in business matters; for it was proved that his uncle, one of the petitioners, had shortly before negotiated with him for the sale of a piece of land of the value of 1000l., thereby admitting his capacity to transact business. The evidence received on this occasion was allowed to extend to the whole of his life; and it may be observed that in cases of alleged imbecility it is not possible, without doing injustice, to prevent the reception of evidence from a long antecedent date. The result of this inquiry was that the jury, by a majority of fifteen to eight, returned the following verdict: That Mr. Windham is of sound mind, and capable of taking care of himself and his affairs." After the verdict had been returned pronouncing him sane and competent, he was guilty of many extravagant acts, exhausted a splendid fortune, and became a bankrupt; showing that, whatever legal soundness of mind he might possess, he practically did not evince the capacity of taking care of his affairs.

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A large section of the public joined in the view prominently put forward at this inquiry by his counsel, that this unfortunate young man had been made the victim of a charge the most cruel, unjust, and unjustifiable. Insanity, it was urged, in the ordinary acceptation of the word, did not exist in his case. There were no illusions, hallucinations, or insane delusions; but as these are never met with in the form of unsoundness imputed to Mr. Windham, namely, imbecility, their absence proved nothing for or against the existence of imbecility or weakness of mind. But what test is there for imbecility except conduct and conversation? There was no incoherency of language, but there was strong evidence of habits such as we do not meet with among men of really reasonable minds; but opinions were divided on the question whether these indicated unsoundness of mind, or a mixture of eccentricity and moral depravity from deficient edu cation. A majority of the jury took the latter view; and Lord Chelms ford, in commenting upon this verdict in the House of Lords, said, "The law as laid down by Lord Lyndhurst applied to cases short of insanity, but they must be cases of unsoundness of mind; and mere extravagance or follies, which indicated imbecility, would not be sufficient unless the

CIVIL RESPONSIBILITY OF LUNATICS.

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imbecility amounted to unsoundness of mind." The legal test of the existence of this state of mind, we are told by high authority, is "conduct." A lawyer means by "madness" conduct of a certain character, while a physician means by it, "a certain disease, one of the effects of which is to produce such conduct." (Stephen's Crim. Law of England, p. 87.) The whole evidence against Mr. Windham bore upon conduct, and from the verdict we learn what sort of conduct does not constitute unsoundness in a legal sense. Thus the marrying of a woman of disreputable character, the squandering upon her of 14,000l. in jewellery, and settling upon her, without any reasonable grounds, 8001. per annum, with other extravagant acts of a similar kind, do not constitute "conduct of a certain character" sufficient to render a man non compos mentis in the eye of the law; but if these acts evince soundness of mind and a competency to manage affairs, what are the acts which indicate unsoundness or incompetency? On the other hand, we are told that the physician looks to the existence of a certain disease; but a physician can know nothing about the existence of disease of the brain during life in any case of imbecility, except in so far as its effects may be manifested by conduct. fore come round to the legal test of "conduct," which in Mr. Windham's case was considered to be quite consistent with the provident management of a large estate and a splendid fortune. That the legal test was here a failure in affording protection from wastefulness is proved by the result the loss of the whole property from reckless extravagance.

We there

So strong was the public feeling in reference to medical evidence after this inquiry, that the Lord Chancellor actually proposed to exclude it altogether in Commissions in Lunacy, except in so far as it was based on facts within the personal knowledge of the witnesses. It was suggested that the general scientific conclusions of experts should not be received as evidence. The proposition, which would have been most injurious to the interests of the insane as well as of the sane, did not meet with a favorable reception.

The medical attendant of every person found lunatic by inquisition has every five years to send to the Masters a report as to the mental and bodily condition of the patient, and a certificate if he is still of unsound mind and a proper person to be detained.

CHAPTER LXV.

CIVIL RESPONSIBILITY.-TESTAMENTARY CAPACITY.-WILLS MADE BY THE INSANE.-TEST OF CAPACITY.—EVIDENCE OF DELUSION.-ECCENTRICITY.

Testamentary Capacity. Wills made by the Insane-Questions involving the testamentary capacity of persons are of frequent occurrence, and medical evidence is commonly required for their solution. When property is bequeathed by a testator out of the usual order of succession, it may be alleged by the relatives that he was incompetent to understand the nature of the deed-either from insanity, the imbecility of age, or that natural failing of the mind which is so often observed to occur from disease or on the approach of death. A disposing mind is what the law requires to render a will valid, and this does not rest so much upon the

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TESTAMENTARY CAPACITY.

question of sanity or insanity, as upon the proof of competency or incompetency in the testator. The best test of capacity for this act is that a man, at the time of signing the will, should know the nature and amount of his property and the just claims of those who are nearly related to him. It has been truly said that the evidence of the medical attendant on the state of the testator's mind at the time of the execution of the will, is worth more than the opinions of experts or of witnesses who may have seen the testator at other times and under other circumstances. (Med. Times and Gaz., 1871, ii. p. 203) A medical man is frequently of necessity a witness to a will, and he should always remember that when he signs his name to it as a witness he is practically testifying to the competency of the testator to make it.

Bodily disease or incapacity does not affect the validity of a will unless the mind is directly or indirectly disturbed by it. A man's mind, under these circumstances, may not be so strong as in robust health, but still it may retain a disposing power. In Harwood v. Baker (Privy Coun., 1841), a will was pronounced to be invalid owing to the general state of bodily disease in which the testator was at the time of making it. He was laboring under erysipelas and fever, and these diseases had produced a degree of drowsiness and stupor which rendered him incompetent to act. In the case of Day (1838), epilepsy was alleged to have affected the mind; and in the case of Blewitt (1833), paralysis was adduced as a ground of incompetency. In all cases of this kind the law looks exclusively to the actual effect of the bodily disease upon the mind at the time the will was made; and this is commonly a question to be determined by a jury from the testimony of the usual medical attendant of the deceased, as well as from the evidence of medical experts.

Test of Capacity.-A person is considered to be of a sane and disposing mind who knows the nature of the act which he is performing, and is fully aware of its consequences. From some decisions that have been given it would appear that a state of mind for which a person might be placed under interdiction or deprived of the management of his affairs would not render him incompetent to the making of a will. The validity of the will of a lunatic was once allowed, although made while he was actually confined in an asylum, because the act was rational, and it was such as the lunatic had announced his intention of making some years prior to the attack of insanity. (Coghlan's case; see Re Garden, Law Times, July 6, 1844, p. 258; also the case of Cartwright, Mayo on Med. Tes., p. 44.) In Nichols and Freeman v. Binns (Prob. Ct., Aug. 1858), the question was whether the will of a Mr. Parkinson, made in a lunatic asylum near Norwich, was executed during a lucid interval. The jury found a verdict in favor of the will. In Parker v. Lord (1876), the testator, Lord, a surgeon, was afflicted with insanity in Jan. 1875. It was proved that he had lucid intervals. He executed his will in the following February. The court pronounced for the will, in which there was a reasonable disposition of his property, on the ground that it had been executed during a lucid interval.

The insanity of a person, when not already found insane under a Commission, must not in these cases rest upon presumption or probability, but be established by positive proof. The act of suicide is often hastily assumed to be evidence of insanity; but it would not be allowed as a proof of this state, even when a testator had destroyed himself shortly after the execution of his will. A case has been decided where the testator committed suicide three days after having given instructions for his will; but the act was not admitted as a proof or even as a presumption of in

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sanity at the time, and the will was pronounced to be valid. In another case, Edwards v. Edwards (Prerog. Ct., Feb. 1854), it was proved that the testator had committed suicide three days after the execution of his will, and there was some evidence of eccentric habits almost amounting to insanity; but the will was found valid. In White v. Halford (Prob. Ct., Feb. 1874), a will was contested on the ground that the testator had thrown himself out of his bedroom window and had inflicted some severe injuries on himself a night or two before the will was made. He repeated these attempts on himself, and eventually died in a lunatic asylum. The jury found in favor of the will. There was no proof that the testator was laboring under any delusion when it was made. Suicide alone is not deemed to be such a proof of the existence of insanity as to render a will invalid.

Delusion in the Deed.-The validity of deeds executed by persons affected with primary delusional insanity (monomania) is often a subject of dispute. The practice of the law indicates that the mere existence of a delusion in the mind of a person does not necessarily vitiate a deed, unless the delusion form the groundwork of it, or unless the most decisive evidence be given that, at the time of executing the deed, the testator's mind was influenced by it. Strong evidence is often derivable from the act itself, especially when a testator has drawn up the will of his own accord. In the case of Barton (1840), the Ecclesiastical Court was chiefly guided in its decision by the nature of the instrument. The testator, it appeared, labored under the delusion that he could dispose of his own property to himself, and make himself his own legatee and executor. This he had accordingly done. The will was pronounced to be invalid. But a will may be manifestly unjust to the surviving relatives of a testator, and it may display some of the extraordinary opinions of the individual; yet it will not necessarily be void, unless the testamentary dispositions clearly indicate that they have been made under the influence of a delusion, and, as has been already remarked, what relatives assert to be delusions are often actual facts. Some injustice may possibly be done by the rigorous adoption of this principle, since delusion may certainly enter into a man's act, whether civil or criminal, and it may not be always in our power to discover it; but, after all, this is perhaps the most equitable mode of construing the last wishes of the dead. The proof of the existence of delusion may be very close upon the date of the will, as in Sewell v. Wells (Prob. Ct., June, 1877), and yet the will may be held to be valid. The testator made his will on March 10, 1875. It was admitted on both sides that he was insane in May, 1875, and there was evidence that he was laboring under delusions regarding himself and his property on March 15, i.e. five days after the date of the will. The jury found that there was no delusion when he made the will. Delusions may exist without being in all cases manifest or discoverable. Persons who have committed suicide, or who have destroyed their own property, or done any other act from which unsoundness of mind might be inferred, might be enabled to conceal the delusions under which they labored down to the last moment of their lives.

According to Nichol, it is not necessary in civil suits to connect the morbid imagination with the act itself; if the mind is proved to be unsound the act is void. In Roberts v. Kerslake (Warwick Aut. Ass., 1854), Lord Wensleydale held that to vitiate a will if it be a case of delirium the act must be traced to delirious delusion, but if be a case of lunacy it need not be traced to a delusion. In Sharpe v. Macauley (Winchester Aut. Ass., 1856), Martin, B., advised the jury in coming to a