THIS was an issue of devisavit vel non from the Register of Wills for New Castle County, on a caveat filed by the contestants against it, whether the paper writing thereunto annexed and purporting to be the last will and testament of Thomas Jamison was or was not his last will and testament. The original will had been duly and formally executed, but in a few days after his death, the executor who had it in his possession, was invited to the house by his daughters, Anna and Agnes, with the request that he would read the will to them, with which he complied, but whilst seated near the stove in the act of reading it to them, it was suddenly snatched from his hands, thrown into the fire and entirely consumed. It had been drawn, however, by *Page 110 his counsel, Charles B. Lore, Esq. about six months previous to the death of the deceased, who had retained in his possession his first draft of it prepared from written instructions received from the deceased, and which with the exception of the executory or concluding portion of it, was a correct copy of the will executed and burnt as before stated; and it was this copy in the handwriting of Mr. Lore, which had been produced and presented by the executor before the Register, and which had been sent up with the issue by him to try whether it was his last will and testament. But after the testimony of Mr. Lore had been taken before the court in regard to it, and the proof of the formal execution of the original will by the testator by the examination of the testamentary witnesses to it, and of its subsequent destruction as before stated by the testimony of the executor, it was allowed to go in evidence to the jury, without any question as to its sufficiency or admissibility.
Gordon for the caveators. We admit the formal execution of the will and that it was destroyed, and that the copy here produced and sent up by the Register with the issue, is a correct copy of it. The only question therefore, which we intend to present after admitting that, is whether the instrument purporting to be the last will and testament of Thomas Jamison deceased, and which was destroyed after its execution and after his death, was, or was not, his last will and testament? We say it was not. In the month of February, 1863, he was stricken down and prostrated very nearly unto death by a violent attack of paralysis, and we shall be prepared to show by a large number of respectable and intelligent witnesses who were well acquainted with him both before and afterward, that if his mind and memory were not totally annihilated by it, they were so far weakened, impaired and shattered by it, as to render him utterly incapable of making a valid last will and testament, and even of transacting the most simple and ordinary kind of business, and that he had repeatedly so declared himself in regard to such business transactions on several occasions. *Page 111 His estate would also be proved to amount to over one hundred thousand dollars, with six children and heirs at law, three sons and three daughters, all of them members of his household when the instrument was executed and up to the time of his death, equally dutiful and affectionate to him, and equally sharing to all appearances, the love and affection of a kind but infirm and afflicted father up to the last moments of his life. He had no wife and had been a widower for many years, and upon his eldest daughter in particular, had devolved not only the chief duty of taking care of him and of his household affairs, but of paying all his little bills, counting his money and taking receipts for him, even to the smallest amounts, because he had neither the mind nor the memory to trust himself to perform, or to attempt to attend to even such trifling transactions. And yet under the provisions and dispositions of this instrument, each one of these daughters is to receive out of his estate only about six thousand dollars, whilst the three sons are to have the balance, or more than four-fifths of the whole amount of it. Such an unequal and unrighteous partition and distribution among his three sons and three daughters, could not have been made or dictated by such a man and such a father as Thomas Jamison was, when in his right mind; and such a thing could only be explained or accounted for by the evidence which would be produced in regard to his mental or physical condition at the time.
As usual in such cases, the testimony was equally positive and pointed upon either side in relation to the mental capacity of the deceased to make a will at that time. The testimony of the physician who was called to attend him on the occasion of his attack and afterward, until he was sufficiently restored to dispense with his professional services, said it consisted of a total paralysis of his left side, and was followed with a softening of the brain, and was positive in his opinion that his mind and memory had been so much impaired by it, that he was never afterward capable of making a will; and several others who had known him well, both before and after his attack, related *Page 112 facts and circumstances and upon them expressed opinions equally strong and positive to the same effect, whilst physicians examined upon the other side, expressed the abstract opinion without having seen him, that softening of the brain neither necessarily, nor usually follows an attack of paralysis, and witnesses upon the same side after stating the facts on which they had formed them, expressed opinions in regard to the matter, quite as strong and decided the other way. The testamentary witnesses were also clearly of the latter opinion and belief when they attested the will.
Gordon, after the examination of the witnesses was closed, said that as the counsel for the caveators in the case did not pretend to controvert or dispute the formal execution, or factum of the instrument in question, and their only effort and object had been to impeach and invalidate it on the ground that the deceased had not sufficient mind and memory, in contemplation of law at the time, to make a will, they considered the burden of showing that to the satisfaction of the jury, necessarily devolved upon them, and that they were consequently entitled to the opening and conclusion of the argument in the case before them, and if the court was not prepared so to decide, they would like to be heard upon the question, before it was decided, for the rulings and practice in this court in similar cases had sanctioned it. We do not wish to hear that question argued. This court decided it in two cases at the late term in Kent County. That is to say, we decided that the onus probandi or burden of proving the instrument propounded, to be the last will and testament of the deceased in any case, rests on the party propounding and setting it up, and that such party therefore had the right to open and conclude the argument. And that that decision was made on principle and in accordance with all the authorities; and although there may have been a former ruling of the *Page 113 principle to the contrary in this court, it was wrong, and we then intended and still intend to correct and reverse and overrule it. And such is now our purpose.
Houston J. As I did not sit in that court and had not the advantage of hearing the argument in either of the cases referred to, if it were now an open question here and the opinion of the majority of the court just announced in this case did not preclude it, I would myself be quite willing to hear the question now argued.
T. F. Bayard, for the Administrator pendente lite, asked the court to charge the jury that the presumption of law is in favor of the capacity of the testator at the time of making his will, and that every man is presumed to be sane, and, of course, of a sound, disposing mind and memory, until the contrary is shown. 1 Jarm. onWills 72. 2 Phil. Ev. 293. Duffield v. Morris' Exr. 2Harr. 379. Nor was it necessary to prove, if the mind had been enfeebled or impaired by disease or otherwise, that it had been restored to its original strength and soundness, in order to enable him to make a good and valid last will and testament; for all that was required in such a case was to show, that he was at the time of a sound and disposing mind, but not that his mind was as strong and vigorous as it had been before it became so affected by disease or other accident. 3 Phil. Ev. 394. Nor was it a question whether the testator was capable of making such a will as was then before the court and jury, but whether he was capable of making a will simply. He must, in the language of the law, have at the time a sound and disposing mind and memory, so as to be able to dispose of his property by will; or in other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, with a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, *Page 114 and comprehend its provisions in their legal form; but it is sufficient if he has such a mind and memory as to enable him to understand the elements of which it is composed, that is to say, the disposition of his property in its simple forms. To determine the capacity of a person to make a will, it is soundness of mind, and not of the body, or the particular state of his body or health at the time, that is to be looked to, for the latter may be in a state of great debility, or of extreme imbecility, and yet he may have sufficient understanding and strength of mind at the same time to direct how his property is to go, or be disposed of after his death, and strength of body to write or execute a will. He must have memory it is true, and yet it may be very imperfect; it may be impaired by age, or disease; he may not be able, at all times, to remember the names of persons with whom he has been intimate; he may at times ask idle questions and repeat those which have before been asked and answered, and yet his understanding be sufficiently sound for many of the ordinary transactions of life; he may not have sufficient strength of mind and memory to make and comprehend all the parts of a contract, and yet be competent to make a will. 1 Jarm. on Wills, 51, 52, 53. Harrison v. Rowan,3 Wash. 580. Stevens v. Vancleve, 4 Wash. 262.Sutton v. Sutton, 5 Harr. 461. Masien v. Anderson, 2Harr. 381, in note. And the incapacity of the testator must be shown to have existed at the time when the will was made, and not before, or afterward. 3 Wash. 586. 4 Wash. 268. 2Harr. 333. 1 Jarm. on Wills, 77. As to the comparative weight of testimony and the opinions expressed by witnesses, the opinions on that subject of the testamentary witnesses to the will, were not only entitled to much greater weight than those of other witnesses, but the opinions of the latter as opinions merely, were entitled to no weight whatever in the case. 1 Jarm. 72, 73.4 Wash. 268. 3 Wash. 586, 587. 2 Harr. 381.
D. M. Bates, for the Caveators. The fact that the statute requires among other things, that a person shall be twenty-one *Page 115 years of age to make a will, necessarily imports and implies that he must have at the time of doing so, some degree of knowledge, judgment and discretion and maturity of reason beyond what is meant, and, of course, understood to be, soundness of mind and memory merely. A person at the age of sixteen, eighteen or twenty years, may be endowed in point of fact, with a sound, disposing mind and memory, and may be competent to make a wise and judicious disposition of his property upon his death even at such a period of his life, and yet he cannot, under the statute, make a last will and testament. These terms "sound disposing mind and memory" employed in the statute, therefore necessarily import or imply something more than mere soundness of mind or memory, and which signify, as much as if it had been expressed in so many words, that he shall be endowed with an unquestionable mental capacity, to make such a final and solemn disposition of all the property which he possesses and is about to leave behind him when he departs from this world. It was observed by Sir John Nicholl, in a recent case, that it is a great, but not an uncommon error, to suppose that because a person can understand a question put to him, and can give a rational answer to it, he is of perfect, sound mind, and is capable of making a will for any purpose whatever, when the rule of law, and also the rule of common sense, is far otherwise; the competency of mind must be judged of by the nature of the act to be done and from a consideration of all the circumstances of the case. InCombe's Case, it was agreed by the Judges that the sane memory for the making of a will, is not at all times when the party can answer to any thing with sense, but he ought to have judgment to discern and to be of perfect memory, otherwise the will is void. Again, according to Lord Coke, it is not sufficient that the testator has a memory when he makes a will, to answer familiar and usual questions, but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason; and that is such a memory as the *Page 116 law calls sane and perfect. And it was not necessary to go so far as to make a man absolutely insane, so as to be an object for a commission of lunacy, in order to determine the question whether the testator was of sound and disposing memory and understanding; a man perhaps, might not be insane, and yet not equal to the important act of disposing of his property by will. Shelf. on Lun. 2 Law Libr. 174. That a testator is capable of answering ordinary and familiar questions, is not sufficient proof of disposing mind and memory, because to constitute such, it is necessary there be an understanding judgment fit to direct an estate. 1 Swin. 118 in note. That in the examination of wills the soundness or unsoundness of mind and memory on the part of the testator, was always a question of fact to be decided by the jury, and to be decided by them upon the whole evidence, according to the plain principles of common sense, unembarrassed by technical language, or unintelligible rules. The terms sound and disposing mind and memory, stood opposed not only to idiocy and lunacy, but to all derangement of mind occasioned by melancholy, grief, sorrow, misfortune, sickness or disease. It was true, however, that every discomposure of the mind by these causes, would not render a person incapable of making a will, but it must be such a discomposure or derangement as deprives him of the rational faculties common to men. The term sound in this connection, signifies whole, unbroken, unimpaired, unshattered by disease or otherwise. A sound and disposing mind and memory means a mind and memory which have the capacity of recollecting, discerning and feeling the relations, connections and obligations of family and blood. Den v. Johnson,2 South. Rep. 455, 458. A person to be capable of making a will must be of a sound disposing mind and memory, so as to be capable of a testamentary disposition of his property with sense and judgment, in reference to the situation and amount of such property and to the relative claims of the different persons who are, or might be the objects of his bounty; and where the derangement, or loss, *Page 117 or unsoundness of the powers of the mind some time previous to the making of the will from disease is established, the weight or burthen of proof is thrown upon the party who seeks to maintain the will, to show that such incapacity had ceased at the time of making it, and when the will itself is unreasonable on its face, when taken in connection with the amount of the testator's property and the situation of his relations, it is always proper evidence to be taken into consideration in judging of the state of the testator's mind.Clark et al. v. Fisher, 1 Paige's Rep. 171. As to an insane or an unsound mind from any cause whatever, he would go further and say that where the will on its face is unreasonable and unnatural in its provisions and contrary to the natural instincts and affections of the testator and to all his past life and conduct before his mind became so affected, as where he has conceived without any actual or adequate cause for it, such an irrational indifference in regard to or a morbid antipathy against his daughters, or any other sex, or class of his children, as to disinherit such children, or to cut them off with a small and insufficient portion, out of an estate amply sufficient to provide them all with a liberal and handsome maintenance, such an extraordinary antipathy, prejudice, or indifference, and such an extraordinary and unnatural disposition of his property in the last will and testament of an aged, infirm diseased and afflicted father, would of itself exhibit clear and conclusive evidence that his mind on that subject at least, was unsound, and that he must have been at the time the victim of an insane delusion with regard to them, which would be sufficient unquestionably, to invalidate any will made under the dominion and influence of it; and it was so considered and decided in the case ofDew v. Clark, 2 Eng. Eccles. Rep. 436.
Gordon, followed, but confined his remarks exclusively to the facts in the case and the evidence before the jury.
T. F. Bayard, replied both upon the law and the facts *Page 118 of the case, and in regard to the decision in the case of Den v.Johnson, 2 South. Rep. 455, cited what was said of it inSloan v. Maxwell et al. 2 Green's Ch. Rep. 568, 569, 570.