The material question in this case is whether an inquisition finding a party a lunatic on a particular day, is conclusive evidence of his lunacy from that time and can not be disproved. I am of opinion that it is not, but that it is prima facie evidence only of incapacity. The learned judge followed a dictum of the chancellor in L'Amoreux v. Crosby, (2 Paige, 427,) in which he says that all gifts of the goods and chattels of the idiot, lunatic or drunkard, and all bonds and other contracts made by him after the actual finding of the inquisition, declaring his incompetency, and until he is permitted to assume the control of his property by the permission of the court, are utterly void. He cites for this doctrine Beverley's case, (4Coke R. 123, and White v. Palmer, (4 Mass. 147.) The case before him did not require him to establish such a rule. Had the inquisition been merely prima facie evidence of incompetency, there was sufficient grounds to set aside the judgment in that case But the part of Beverley's case, cited by the chancellor, relates to the case of idiots alone, with respect to whom the presumption is that the disability will continue during life. A distinction is taken in the same case between idiots and lunatics. In the latter case the king has not an interest as he has in the idiot, because the lunatic may recover his memorywhich he has lost. The alienation, gift, c. after, office found of him who is non compos mentis are in equal case with the alienation or gift of an idiot; but this means while the infirmity continues. The form of the writ founded on the inqusition, in the two cases of idiocy and lunacy, indicates that the one may recover and the other not. In White v. Palmer, (4Mass. 149,) the court treated an inquisition finding a partynon compos mentis, as prima facie evidence of the fact, and competent evidence to be submitted to the jury when the *Page 395 issue was as to his capacity to contract, c., as between the lunatic and his committee, it is doubtless conclusive until set aside. (15 Mass. 280.)
This subject has several times been incidentally passed upon by our courts. In Hart v. Deamer, (6 Wend. 497,) on an issue to determine whether the defendant was a lunatic at the time he executed a bond, an inquisition under a writ de lunaticioinquirendo, finding that the defendant was a lunatic and of unsound mind, and enjoyed no lucid intervals, was held by the court to be admissible in evidence. Savage, Ch. J., said it wasprima facie evidence but not conclusive. In Osterhout v.Shoemaker, (3 Hill, 513,) Bronson, J., considers this to be law, but the case did not require a discussion of the doctrine. Mr. Phillips (Evidence, vol. 1, 375) lays down the rule that an inquisition of lunacy is evidence of the fact, but not conclusive. The same principle is laid down by Starkie, (1Stark. Ev. 245,) and by Greenleaf, § 559.
Lord Hardwick, in Sergeson v. Sealey, (2 Atk. 412,) permitted an inquisition of lunacy to be read, but said that it was not conclusive because it might be traversed. The fact that it may be traversed by a party where a conveyance is overreached by it, shews that it is only prima facie evidence and may be repelled. (Matter of Christie, 5 Paige, 242.) In Breed v.Pratt, (18 Pick. 115,) the supreme court of Massachusetts held that the fact that the testator was under guardianship as a lunatic, did not disqualify him from making a will, if he was shown to be of sound mind. To the same effect is Stone v.Damon, (12 Mass. 488;) and see C. H. Notes, 942, where several other cases are collected. The cases do not make any distinction where the act is overreached by the inquisition, whether it was committed before or after the time when the inquisition was found. There can be no difference in principle between the two cases. If a party can make a will while under a commission, he can, in a lucid interval, do other acts binding himself. He can not, indeed, resume the control of *Page 396 his estate without the aid of the court, because that is placed out of his reach. And of course all gifts of his goods and chattels, and contracts affecting them while his estate is under the control of the committee, must necessarily be void. But no reason is perceived why the lunatic may not be bound by a contract made in a lucid interval, whether he be under a commission or not. An action, indeed, can not be sustained against him for a breach of such contract, nor can an execution be enforced against his property, without leave of the court.
The learned judge who delivered the opinion of the supreme court in the matter of Patterson, (4 Howard's Pr. Rep. 34,) expressed the opinion that while a commission remains in force, a lunatic though restored to his reason, can not make a valid will without leave of the court; and that to enable him to do so, the commission should be suspended, quoad hoc, and leave for that purpose granted, as was done by the chancellor in the matter ofBurr, (2 Barb. Ch. R. 208.) A will stands upon a different footing in some respects, from a contract to be executed intervivos, in as much as it does not take effect until death has put an end to the commission. Still I apprehend the sole object of the partial suspension of the commission to enable a lunatic to make a will, is to remove the prima facie presumption against its validity, which would exist if the commission was in force. The party setting up the will of a deceased lunatic must establish the fact, that at the time of its execution the testator was of sound disposing mind and memory, and not under restraint. This fact is essential to be proved, whether he was under a commission or not. The only difference between the two cases is, that in case the testator making the will was in the custody of a committee under a commission of lunacy, his executors, to prove the will, must overcome the prima facie presumption of incompetency arising from the condition of the testator. The general rule is, that every person, not under a commission, is presumed to be sane until the contrary appears. *Page 397 But with respect to a person against whom an inquisition of lunacy has been found, the prima facie presumption is that his lunacy continues until the commission is revoked. To establish a will of a party under a commission it is not enough merely to prove the statutory requirements, but further evidence must be given, enough to remove the presumption of continued insanity arising from an unrevoked commission.
If the lunatic has mind enough to make a will, he can make any other contract. Such contract, however, can not be enforced without the leave of the court under whose control the lunatic and his estate are placed. The present action was brought by leave of the late court of chancery, which had awarded the commission. I think the court erred in excluding the evidence offered to show that the lunatic was sober and competent totransact business at the time he signed the written waiver of nonpayment and notice of protest. Had the evidence been received, and had it led to the recovery of a judgment against the lunatic, it could not have been enforced upon his property under the control of the court, without its leave.
I think the judgment of the supreme court should be reversed and a new trial ordered with costs to abide the event
Judgment affirmed. *Page 398