714

ECCENTRICITY IN WILLS.

conclusion on the question whether the testator had a "sound and dispesing mind" to look, not to the opinions of others, but to the man's own acts as well as his correspondence. A disposing mind implied that a man understood the nature of his property, the use and benefits arising from it, and had sense and discretion to select persons to enjoy it after his death. A man may have labored under delusions and have been confined as a lunatic, yet at the date of his will he may have been sane and have had a disposing power. The main question, therefore, is: Was the testator of sane mind when the will was executed? This may be deduced from direct evidence of his condition as well as from the provisions of the will itself.

Eccentricity in Wills.-The evidence in these cases sometimes amounts to proof of eccentricity only on the part of the testator or in the deed itself; but a clear distinction must be here drawn. The will of an eccentric man is such as might always have been expected from him; the will of one laboring under insanity (delusion) is different from that which he would have made in an unaffected state-the instrument is wholly different from what it would once have been. The insane are eccentric in their ideas, their language, or their conduct; but the merely eccentric have but a voluntary resemblance to the insane in these respects. (Jamieson's Lect., Lon. Med. Gaz., vol. xlvi. p. 180.) They can if they please alter their conduct and act like other persons neither eccentric nor insane. In a case in the Probate Court, Hannen, J., observed that it was impossible to define exactly the distinction between eccentricity and insanity or to draw the exact line between sanity and insanity, but for practical purposes we are able to say in a particular instance whether a man is sane or insane. The acts of eccentricity may be harmless, and the evidence may show that up to the time of death the testator may have been treated as a person of sound mind. In Burdett v. Thompson (Prob. Ct., July, 1873), the will of a testatrix was disputed because in a codicil she had ordered the doors and windows of her house to be bricked up and the house locked up with the furniture and contents for a period of twenty years. Further, that her pony, pigeons, dogs, and poultry were to be shot after her death. It was proved that she was a shrewd and intelligent woman, and managed her own affairs down to the time of her death. On the other hand, it was contended that these acts were an indication of mental disease. Hannen, J., said it was impossible to lay down any abstract proposition as to what constituted unsoundness of mind. No person's mind could be said to be perfectly sound, just as no person's body could be said to be perfectly sound; but the question in these cases was whether there was such a degree of unsoundness as to interfere with those faculties which required to be brought into action in making a will. The jury were not able to agree upon this question and were discharged. Wills are sometimes contested more on the ground of eccentricity than of insane delusion; but if eccentricity only be proved a court will not interfere. In the case of Morgan v. Boys (1838), it was proved that the testator by his will had left a large fortune to his housekeeper. The will was disputed on the ground that it bore intrinsic evidence of the deceased not having been in a sane state of mind at the time of making it. After having bequeathed his property to a stranger, the testator directed that his executors should "cause some parts of his bowels to be converted into fiddle-strings, that others should be sublimed into smelling-salts, and that the remainder of his body should be vitrified into lenses for optical purposes." He further added in a letter attached to his will: "The world may think this to be done in a spirit of singularity or whim, but I have

WILLS IN EXTREMIS.

715

a mortal aversion to funeral pomp, and I wish my body to be converted into purposes useful to mankind." It was shown that the deceased had conducted his affairs with great shrewdness and ability; that he not only did not labor under imbecility, but that he had been always treated during life as a person of indisputable capacity by those with whom he had to deal. Jenner in giving judgment held that insanity was not proved; the facts merely amounted to eccentricity, and on this ground be pronounced for the validity of the will. The best rule to guide the court was the conduct of persons towards the deceased; and the acts of his relatives evinced no distrust of his sanity or capacity while he was living. The deceased had always been noted for his eccentric habits, and he had actually consulted a physician upon the possibility of his body being devoted to chemical experiments after death. In the case of Mudway v. Croft (Prerog. Ct., Aug. 1943), a will contested on the ground of insanity but defended on the plea of eccentricity, Fust said: "It is the prolonged departure, without an adequate external cause, from the state of feeling and modes of thinking usual to the individual when in health, this is the true feature of disorder of the mind."

Wills in Senile Dementia.-Wills made in incipient dementia arising from extreme age (senile imbecility) are often disputed, either on the ground of mental deficiency, or of the testator, owing to weakness of mind, having been subjected to control and influence on the part of interested persons. If a medical man be present when a will is executed, he may satisfy himself of the state of mind of a testator, by requiring him to repeat from memory the mode in which he has disposed of the bulk of his property. A medical man has sometimes placed himself in a serious position by becoming a witness to a will without first assuring himself of the actual mental condition of the person making it (case of the Duchess of Manchester, 1854). It would always be a good ground of justification if, at the request of the witness, the testator is made to repeat substantially the leading provisions of his will from memory. If a dying or sick person cannot do this without prompting or suggestion, there is reason to believe that he has not a sane and disposing mind. It has been observed on some occasions, when the mind has been weakened by disease or infirmity from age, that it has suddenly cleared up before death, and the person has unexpectedly shown a disposing capacity. (Ann. d'Hyg., 1831, p. 360.) In Durnell v. Corfield (Prerog. Ct., July, 1844), a case in which an old man of weakened capacity had made a will in favor of his medical attendant, Lushington held that, to render it valid, there must be the clearest proof, not only of the factum of the instrument, but of the testator's knowledge of its contents. (Law Times, July 27, 1844.) In West v. Sylvester (Nov. 1864), Wilde, J., in pronouncing judgment against a will propounded as that of the deceased, an aged lady, said, "At the time she executed the will, although for many purposes she might be said to be in her right senses, she was nevertheless suffering from that failure and decrepitude of memory which prevented her from having present to her mind the proper objects of her bounty, and selecting those whom she wished to partake of it."

Wills in Extremis.-Wills made by persons whose capacity during life has been never doubted, while lying at the point of death or, as it is termed, in extremis, are justly regarded with suspicion, and may be set aside according to the medical circumstances proved. Many diseases, especially those which affect the brain or nervous system, directly or indirectly, are likely to produce a dulness or confusion of intellect, under which a proper disposing power is lost. Delirium sometimes precedes

716

HABITUAL INTEMPERANCE.

death, in which case a will executed by a dying person thus affected would be pronounced invalid.

64

In examining the capacity of a person under these circumstances, we should avoid putting leading questions-namely, those which suggest the answers "yes" or no." Thus, a dying man may hear a document read over, and affirm, in answer to such a question, that it is in accordance with his wishes, but without understanding its purport. This is not satisfactory evidence of his having a disposing mind; we should see that he is able to dictate the provisions of the document, and to repeat them substantially from memory when required. If he can do this accurately, there can be no doubt of his possessing complete testamentary capacity. But it may be objected that many dying men cannot be supposed capable of such an exertion of memory; the answer is then very simple; it is better that the person should die without a will, and his property be distributed according to the law of intestacy, than that, through any failing of his mind, he should unknowingly cut off the rights of those who have the strongest claims upon him.

Habitual Intemperance.-A man may be of drunken habits, and yet not incapacitated for making a will. In Smith v. Austen (Prob. Ct., Nov. 1875), Hannen, J., pronounced in favor of the will of a man who was proved to have been of exceedingly drunken habits. The question was whether his mental faculties had been thereby enfeebled so as to render him incapable of exercising his judgment. There was no proof of this, and during life he had not been treated by anybody as incapable of managing his affairs.

Effect of Narcotics.-The habitual use of opium or other narcotics may give rise to a question respecting testamentary capacity. We were consulted in a case of this kind, in which the testator had been in the habit of taking morphine, until, according to our informant, the dose had reached fifteen grains a day. He made a will fairly disposing of his property among his children. Nine days afterwards he made another will, entirely revoking the previous one, leaving his property to a younger son, who was alleged to have exerted an undue influence. The will was declared valid.

The long use of narcotics, in large doses, may weaken the powers of the mind, and render a man more easily amenable to improper influence; but the question will be in this case, as with drunkards, whether the habit has permanently enfeebled the mind so as to prevent a man from exercising a reasonable disposition of his property. The proof of this will rests with those who would benefit by the allegation.

Restriction of Medical Opinions. In an important case (Bainbrigge v. Bainbrigge, Oxford Sum. Ass., 1850), tried before Lord Campbell, in which the testamentary capacity of a man was disputed, it was held that a medical witness, although conversant with cases of insanity, cannot be asked his opinion as to the insanity of a testator founded upon evidence given at the trial in his hearing. (4 Cox, Crim. Cases, 454; see also on this subject, Lond. Med. Gaz., vol. xlvi. p. 240.) In the case of the Duchess of Manchester, however, the opinions of Sutherland, Mayo, and Conolly on the competency of the testatrix to make a will were received by the court, although based only upon the evidence given at the trial. The above decision may, indeed, now be considered as entirely set aside.

THE PLEA OR DEFENCE OF INSANITY.

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CHAPTER LXVI.

THE PLEA OR DEFENCE OF INSANITY.-CIRCUMSTANCES UNDER WHICH IT IS ADMISSIBLE. HOMICIDAL INSANITY.-MORAL INSANITY.-SYMPTOMS.-LEGAL TESTS.-MEDICAL TESTS.DELUSION.-TESTS OF IRRESPONSIBILITY.—MEDICAL EVIDENCE.

The Plea or Defence of Insanity.-Responsibility here signifies nothing more than liability to punishment for crime, and a criminal act implies the existence of intention, will, and malice. (Stephen.) When insanity has reached a certain stage or degree, an act may be perpetrated without malice; and in this sense the person is considered to be irresponsible in law. This is a question of fact, to be determined by a jury from the whole evidence set before them; and the proof rests with those who make the allegation that the act in question, whether murder or arson, was not done wilfully and maliciously. "The sanity of a man's conduct," observes Stephen, J., "involves the presence of intention and will on all ordinary occasions; and if the act is one of those which the law forbids, it is presumed to be malicious and wicked." (Crim. Law of England, p. 89.) This subject is of considerable importance in a medico-legal view; for should a plea of insanity be improperly admitted in any criminal case, then punishment is made to fall unequally on offenders; and if, on the other hand, it be improperly rejected, punishment is administered with undue severity, and loses its deterrent influence. The rule of law is that no man is responsible like a sane person for any act committed by him while in a state of insanity; but the existence of mental disease does not necessarily exempt a person from criminal responsibility. (Reg. v. Burton, Maidstone Lent Ass., 1862.) Many a man whose mind is unsound knows perfectly well that he is doing wrong; and so long as he knows that, he is subject to the criminal law. The plea of insanity may be raised for the smallest offence up to the highest crime-murder; but it is rarely made a defence in smaller offences, because the confinement to which an accused person, if found insane, would necessarily be subjected, would often be a heavier punishment than that which the law actually prescribes for the offence which he may have committed. In a case of felonious assault, it was urged by counsel in defence that the prisoner was insane; but the evidence on this point was not by any means conclusive— when it was intimated by the court that, if this plea were admitted, the party would probably undergo a much longer imprisonment than if on conviction he received the legal punishment for the offence. (Reg. v. Reynolds, Bodmin Aut. Ass., 1843.) The judge is reported to have said that there was no proof of insanity. If the prisoner was pronounced insane, he might be imprisoned for life, and therefore he did not think that that finding would benefit him. A verdict of guilty was returned, and the man was sentenced to eighteen months' imprisonment. This case shows that a defence of this kind may be sometimes indiscreetly put forward. Such a mode of dealing with the plea of insanity, i. e. of making it a ques tion of expediency dependent on the amount of punishment for the offence, must be pronounced indefensible.

The discharge of persons who have perpetrated a criminal act or heinous crime, but have been acquitted on the ground of insanity and con

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DEGREES OF CRIMINAL RESPONSIBILITY.

fined during her Majesty's pleasure, is a very serious matter, and one in which the safety of the public is deeply concerned. Some medical men appear to think that the interest of the prisoner alone is to be considered; but this would lead to the discharge of many dangerous lunatics. (Dodwell's case, ante, p. 703.)

Murder, incendiarism, and theft are the crimes for which the plea of insanity is commonly raised; and it has been generally confined in this country to those cases in which persons have been charged with murder or attempts at murder. Murder may be perpetrated by one who is obviously laboring under delirium or violent mania, or by an idiot or imbecile. Apart from the circumstances connected with the criminal act, there may be clear evidence of such a disordered state of mind in the person, as at once to exonerate him from that amount of responsibility which is exacted from one who is sane. The appearance of the accused, or the testimony of a medical man, renders it unnecessary to go into the evidence, and a verdict is returned accordingly. The cases of difficulty are those in which insanity presents itself in a doubtful aspect, as in mania complicated with epilepsy, or in some forms of imbecility. The mental disorder may be of so slight a nature as not to justify an acquittal for murder. In order to exculpate a person, it must be proved that insanity in a certain degree existed at the time of the perpetration of the act. Whether the prisoner is or is not insane when placed on his trial, has been sometimes held to be immaterial in reference to the question of responsibility. In the case of Murray (High Ct. of Just., Edin., Nov. 1858), it was proved that the accused recovered his sanity eight hours after he had killed the deceased; but he was acquitted on the ground of insanity at the time of committing the act. [The Act of Parliament of August, 1883, provides and the English Judges charge, that if the accused was insane at the time the act was committed, that the jury should so find: vid. Judge Day's charge in case of Gouedstan, Med. Leg. Jour., vol. 2, p. 343.]

The proved existence of mental disease does not necessarily exempt a person from criminal responsibility. Even the existence of a morbid delusion cannot always be allowed to screen a criminal from the consequences of his own acts; while, on the other hand, there are instances in which a plea of insanity may be properly allowed, although no delusion can be proved. Each case must be taken with all its surrounding circum

stances.

The great difference of opinion which exists between physicians and jurists in reference to this plea appears to consist in this: most jurists contend that no degree of insanity should exempt from punishment for crime, unless it has reached that point that the person is utterly unconscious of the difference between right and wrong at the time of committing the alleged crime. Physicians, on the other hand, affirm that this is not a proper test of the existence of that degree of insanity which should exempt a man from punishment for his acts; that those who are laboring under confirmed insanity, and who have been properly confined in asylums for years, are fully conscious of the difference between right and wrong, and are quite able to appreciate the illegality as well as the consequences of their acts. Again, those who have patiently watched the insane for years agree that the legal test of utter unconsciousness of right and wrong in the performance of acts would in reality apply only to persons who were suffering from delirium, from furious paroxysms of mania, or from confirmed idiocy; and that if the rule suggested that a person, in order to be acquitted on the ground of insanity, should be first proved to be as unconscious of his act as a baby (Warren)—were strictly carried out,