Blanchard v. Nestle

By the Court, Jewett, J. The statutory provisions respecting the capacity to make a last will and testament are ' as follows : “All persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate by their last will and testament duly executed.” (2 R. S. 56 § 1.) “ Every male person of the age of eighteen years or upwards, and every female (not being a married woman) of the age of sixteen years or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing.” (2 id. 60, § 21.) The remark of the learned circuit judge in his charge to the jury, which was excepted to, in reference to the mental capacity of the testator at the time he signed the will of the 6th of February, 1841, raises this question: whether there is any point between the highest and lowest grade of mental strength, which being attained in a given case, the law deems the individual of unsound mind. The judge held that there was not. He stated, in effect, that however weak the mind of the testator was proved [41] to have been, unless it was shown that he was totally deprived of understanding, his will could not for that cause be avoided. This sentence in the charge should be read in connection with that which immediately preceded it, which was a rehearsal of part of the marginal abstract of the case of Stewart’s ex’r v. Lispenard. That case, which was determined in tire court for the correction of errors, 1 think fully sustains the charge. It was there held,that the term “unsound mind” in our law,was used as synonymous with non compos mentis—which comprehended all defects of the mind of which the law takes notice. This, it was said, was of four kinds, as defined by Lord Coke and approved by Blackstone. “ 1. Idiota, which from his nativity by a perpetual infirmity is non compos mentis. 2. lie that by sickness, grief, or other accident, wholly loses his memory and understanding. 3. A lunatic, that hath sometimes his understanding and sometimes not, and therefore he is called non compos mentis so long as he hath not understanding. 4. Lastly, he that for a time depriveth himself, by his own vicious act, of his memory and understanding, as he that is drunken.” It is not pretended that the testator falls within either of these definitions of non compos mentis except the second; but it is insisted that by reason of sickness and the infirmity of old age his memory and understanding were so impaired as to render him incapable of recollecting, discerning and feeling the relations and obligations of family and blood, so as to enable him to make a disposition of his property with sense and judgment. This involves the proposition, that although the testator had not wholly lost his memory and understanding, yet that he was, from mere weakness of mind, in contemplation of law of unsound mind—and for that reason, within the exception of the statute. It is enough to say that the law makes no such distinction. There is no grade of understanding, between the highest and lowest, which incapacitates the testator, when there is no fraud or imposition. In the language of Senator Yerplanck, “ to establish any standard of intellect or information beyond the possession of reason in its lowest degree, as in itself essential to legal capacity, would create endless uncertainty, difficulty and [42] litigation, would shake the security of property, and wrest from the aged and infirm that authority over their earnings or savings which is often their best security against injury and neglect. If you throw aside the old common law test of capacity, then proofs of wild speculations or extravagant and peculiar opinions or of the forgetfulness or the prejudices of old age might be sufficient to shake the fairest conveyance, or impeach the most equitable will. The law, therefore, in fixing the standard of positive legal competency, has taken a low standard of capacity; but it is a clear and definite one, and therefore wise and safe. It holds, (in the language of the latest English writer on this subject,) that “ weak minds differ from strong ones only in the extent and power of their faculties; but unless they betray a total loss of understanding, or idiocy, or delusion, they cannot properly be considered unsound." (Shelford on Lunacy, 39.) Lord Hardwicke, (Ex parte Barnsley, 3 Atk. 168,) says, “ Being, non compos—of unsound mind—are certain terms in law, and import a total deprivation of sense. Now weakness does not carry this idea along with it; but courts of law understand what is meant by non compos or insane, as they are words of a determinate signification.” It is contended that the judge erred in omitting to instruct the jury as to the legal effect of the testimony on that subject. It is a sufficient answer to this objection that the plaintiffs on the trial acquiesced in the charge ; and no complaint is made against what was said by the judge, but it consists in his not having dilated upon the facts proved, and the presumptions of law arising from them. The counsel for the plaintiffs should have called on the judge for a further charge, if it was not satisfactory. It is no ground for a new trial, that more might have been said with propriety on the subject, by the judge, especially as no request was made. (Camden, &c. Transportation Co. v. Belknap, 21 Wend. 354.) I have examined the evidence, I think carefully, and am free to say, that in' my opinion it falls far short of establishing the fact of any improper influence having been exercised over the testator in the making of his will. There is not the slightest [43] proof that I can discover, to show any artifice or fraud having been practised or attempted, by any person, upon the testator in regard to it. It is true that the defendant’s wife wrote a part of the will; büt if there is any reliance on human testimony, it is equally true that in that she only obeyed with reluctance, the commands, or complied with the urgent request of her father. It is said that she dictated the will. If by that is meant that she reminded her father of what he had, as she stated, before told her in relation to certain of his property, it is true. But does that amount to the exercise of undue influence? Influence— persuasion may be fairly used. A person has a right by fair argument or persuasion to induce another to make a will, and even to make it in his own favor. The procuring a will to be made by such means is nothing against its validity. (Miller v. Miller, 3 Serg. & Rawle, 267.) So far from the verdict being against the weight of evidence, I think it well warranted by the proof. New trial denied.