This case was submitted to the court before I took my seat upon the bench. I should not, therefore, undertake to express any dissent from the opinion rendered by my associates were' it not that after its investigation, which had been specially requested by them, an opinion from me seems to be demanded by the importance of the question respecting the degree-of testamentary capacity necessary to sustain a will.
The right of testamentary disposition of property, while it is a strong incentive to its acquisition, 'is at the same time of great importance in securing respect and attention to the aged and infirm on. the part of their families.
But this right is of little worth unless jealously guarded by courts and by juries against the intermeddling of strangers, who' With fraudulent devices and cunning deceptions come between the dying and their relatives, and obtain bequests over the destruction of the affections which bind kindred together.
The history of this case presents a remarkably strong instance of an iniquitous will, obtained by the undue influence and fraudulent acts of a stranger to the blood, to the exclusion of the rightful heirs.
The- testimony shows that Colonel Washington, whose will is the subject of this controversy, was .a, Virginian and a gentleman of cultivated mind and polished manners, pure in his language and regular in his habits. He came to Texas, from Mississippi, some thirty years ago, with his sister, Mrs. Beazley, and her family, consisting of her. husband and their children. He brought with him some money and property belonging to his sister, which he invested in lands .in Folk county, taking the title thereto in "his own name, for the reason that he considered his sister’s husband) who was blind, incapable of taking -care of -his family.
*207Col. Washington tenderly loved his sister, and assigned as a reason for not marrying that her family was all that he desired. He frequently expressed his intention of giving his property to her at his death, and in 1860 he made a will in her favor, which was admitted to probate.
In 1868 he became acquainted with Col. Denson, the appellant, to whom he sold his plantation and other property for sixteen thousand dollars, on credit, taking two notes for two thousand dollars each, and twelve notes for one thousand dollars each.
On the sixth day of June, 1868, he made the will in controversy, in which, after directing that the notes should be first applied to the payment of his debts, he made the following disposition :
* * * '* "* “I bequeath to the said Wm. B. Benson all the remainder of said notes, and instruct my executors to deliver the said notes to him, to be cancelled s« soon as my debts shall have been paid. This bequest is made in consequence of losses and failures of crops incurred since he made the purchase, and also on account of kindness and attention received from himself and his family. All other property, real and personal, of which I die possessed, I bequeath to my sister, Mrs. Mary H. Beazley, for her sole and separate use.” To which, on the eighth day of June, he appended the following: “I make this codicil to my last will and testament, bearing date of the sixth of this instant, 1868.—I instruct my executors under no circumstances to press W. B. Denson, so long as he complies with the conditions of the sale by working the plantation and paying the portion of crops agreed upon. I also beg of the creditors on their own account as well as Col. Denson’s, not to press or harass him so long as he works the plantation and pays over the portion of the crop for which he has given a lien.”
Two days after the will was written, Sansom, who had been named as one of. the executors, wrote the codicil, and, together *208with Cole, witnessed the will. He testifies that the will was on the table by the side of Col. Washington’s bed, and that no others were present except Denson and Cole. After he had read the will, Col. Washington said to him, “Ton will naturally he surprised that after having sold my property for sixteen thousand dollars I now propose giving it to Col. Denson for about five thousand dollars. My reasons for this are, that at the time I sold to him I expected him to make a good crop. He has failed to make a cotton crop, not having got a stand. I further think that if I leave this property for you, as executer, to make the money to pay my debts, in the condition the country is in, very little would be left. What there is left I desire Col. Denson to have the benefit of, as hé and his family have been very kind to me.”
It appears from the testimony of several witnesses that the will was prepared at the house of Col.- Depson, one or two days after the testator took his bed, from which he never arose; that Denson, after purchasing the plantation, moved with his family into the house, and that Denson’s brother-in-law, Cole, and his family, also lived in the house with him. He was separated from all his family and former friends, with no one near his bedside but Benson and his brother-in-law, Cole. Denson became acquainted with Col. Washington about six months before his death, and for that time resided with him in the same house, with every opportunity for exerting an undue influence upon his mind, which was enervated by disease, by age, and by the fierce calamities of revolution and war, which involved the loss of his property and the overthrow of his long cherished political and social theories, at an advanced age, teo, when his physical energies were decayed, and when all hopes of the future were gone. He imagined that all his neighbors had combined against him, and rejoiced at his ' downfall. Some Indians, who were his ' former wards and pets, were no longer of any interest. He imagined that his family servants had become .his enemies., and meditated-his assassination, and that alibis family *209had turned against him except his sister, whom he remembered in his last hours, and expressed a transient pleasure in believing that something would be left her after satisfying the illusory claims of Denson and his family, etc.
His bed-room was over the dining-room; and when at their meals, Denson and Cole would talk in a loud tone 'Of the gloomy prospect for a crop, and frequently reiterated that it would be a failure. They brought him a twig of cotton, on which were two worms, and told him that they considered the cotton crop as gone, and that the corn crop was fast going to destruction on account of the drought. After they had retired he remarked, “It is .all gone ! all gone!”
Col. Washington, about ;3 ■ ok:lock in -the morning of -the day the codicil was written, called Cole to his room, when .he said to him that he was sick nigh unto death,” and thought that he had been poisoned by a negro boy, but changed his mind in a few moments, and said he was poisoned by some Irish potatoes he had eaten. He said to Sansom that evening that he had been poisoned by eating Irish potatoes ; and one or two days afterwards he repeated the same to Dr. Hill, his physician, and also to .Mrs. Hill, who stayed with and nursed him for several days. This lady, in her testimony,-says: “He required me to cook everything he eat, and ■to draw the water he drank, with my own hands. He would not drink water brought him by another during my absence .from his room. He would not drink a cup of coffee brought him by a servant, but made me take it away andunake a cup and bring to him with my own hands. During my visit, and after he had been convalescent for three-days, he asked me to take a trip with him to Lampasas Springs', and told me that the mutton there was of the same peculiar flavor as -the mutton I had relished so much when with him at the Bedford Springs in the summer of 1833— which was just thirteen years before I was born—and was much • worried with me when I denied having been at the Bedford *210Springs, assuring me that I had been- there with him, and" that when I tasted the mutton at Lampasas I would remember all about it.”
Dr. MeOardles, a practicing physician, thought Col. Washington’s conduct towards Mm very strange.. He heard'Mrs. Hill’s testimony and thought, admitting it to'be true, that Col. Washington must have been crazy. He thought that if he- was of the same-belief on-the-sixth of June, when he wrote Ms will,- that he expressed on the seventh of June, about being poisoned with- Irish potatoes’, that he was laboring under a delusion then,
Dr. Hill, who was his attending physician, regarded Col. Washington’s delusion of being poisoned as springing from an unsound state of mind. He stated that his mind was unátiund’ on the subject of free negrees- and described his mental condition as that of" “ insane delusion.”
Dr. Beazley had'known Col: Washington for years, and prior to the war had lived .with him the greater part of Ms life, and for several years had acted as his clerk and agent, or man of business; During the first year of the war he saw nothing to induce him to believe Col. Washington to be of unsound mind. He saw him in 1862, and immediately noticed that he was not what he had been; formerly he'was mild, gentle and kind in disposition, and regular in his habits, but was then peevish and irritable, and disorderly in Ms general conduct. His habits were changed’—instead of retiring early-as usual, he- would’ sometimes walk until late at night, and was moody and unapproachable. He- considered this change the result of mental depression caused-by the state of his- affairs. M. Davidson noticed, from Col. Washington’s conversation, that there was something wrong with him. He spoke coldly to- him, and said “ You are all a set of damned swindlers, and I am mad enough with you to kill you. He then went into his room, and when he-came back-and took a chair I saw the handle of a dirk or bowie-knife, under his vest. There was- nothing to justify unkind feelings.”
*211Louis McComb had known Col. Washington for twenty years and was on intimate terms with him, and was frequently at his house. “ Last fall, went to him to borrow a wagon, when he got into a passion. His conduct was unnatural, and his character was changed from what it had been/’
Col. -Sansom had known Col. Washington for twenty years, and had always considered him eccentric, with strong passions and prejudices, and easily influenced by ".those he liked. After the war, he had noticed an increased irritability of temper and perverseness of disposition. He became notionate and changeable in his latter years ; would reason logically, but failed to carry but his plans. He attributed this to his old age, the condition .of the country and the difficulties under which he was laboring.
In 1866 he dressed up his negroes and drove them about in his carriage, but fell out with them in a short time, cursed and abused them, and threatened to shoot them like dogs. He suspected that they intended to assassinate him to get his plantation. He also thought that his neighbors had combined against him for his ruin; said .several times to Sansom that he (Sansom) was the only-gentleman in the neighborhood, and the only one of his "neighbors who had not arrayed himself against him. He thought the poor man rejoiced at .the downfall of the rich man, and that the poor rejoiced at his downfall and loss of property.
Benjamin Brooks had known CbL Washington for thirty-two years; had belonged to the Beazley family; testifies to a great change in Col. Washington since the war.
Alfred Brooks had known. Col. Washington thirty-two years ; was his carriage driver; saw a great change in his character since the war; he was very cross; thought him crazy.
On the other hand, the subscribing witnesses to .the will state that they saw nothing indicating that Col'. Washington was of unsound mind. But there is no evidence in the record contradicting any witness as to the truth of any specific fact or circumstance related by them.
*212Different witnesses who thought Col. Washington insane- based their opinions upon observations of facts and incidents which transpired at different times.
From the delicate nature of all investigations into the state of the human mind, it is not to be expected that a witness should accurately describe the symptoms of mental alienation; yet opinions, by the settled rules of law, are evidence. The value of these opinions depends upon the opportunities, the length of' acquaintance, and the intimacy of their personal relations, which enable them to judge of the mental condition of the deceased.
The court, in an extremely able charge on all the- questions suggested by the evidence in the record, instructed the jury to-find the will invalid, if they believed from the evidence that the-testator was of unsound mind at the time of its execution, or that, it had been procured by undue influence, or by fraud.
The jury returned a general verdict that the will was invalid,, without specifying grounds for their finding.
The correctness of this verdict and the judgment thereon depends upon the correctness of the charge of the court upon the law of the case, and especially when applied to insane delusion-
This court express the opinion that there is error, a-nd point particularly to the following paragraph in the charge: “ The-delusions which are the ordinary accompaniments and evidences of insanity, are extravagant or impossible things which do not exist at all except in the- imagination of the insane person, but which h& cannot be persuaded or convinced-do- not exist.”
It is apparent that the words. “ belief of,” or words of similar import, are omitted in the transcript. If these words be supplied we have a definition of “delusion” almost identical with that, 'given by Redfield, who says: “ Delusion is defined to be when a patient conceives something extravagant to exist which has no existence but' in his own heated imagination, and having so conceived it, is incapable of being; reasoned out of the conception.”
*213Indeed, the charge, in its several divisions, appears to have been copied directly from the authorities, and whatever error there is consists in too close an adherence to the definitions of insane delusion as expressed by medical writers and jurists, none of whom have succeeded in embracing all the phases of insane delusion within the compass of a definition. Redfield, referring to the definition of the author of the “Medical Jurisprudence of Insanity,” says: “The learned author will find it not sufficiently comprehensive to embrace all cases of insane delusion. For, many cases of delusion are none the less obviously morbid and the result of insane perversion, in that they are not absolutely impossible.” (1 Red., 71, 72.)
' Taylor, in his work on Medical Jurisprudence, (p. 624) says: “ The main character of insanity, in a legal view, is said to be the existence of delusiop, i. e., that a person should believe something to exist which does not exist, and that he should act upon' this belief. ****** Unsound mind (non compos mentis) of the exact meaning of which it is impossible to give a consistent definition. From various legal decisions, it would appear that the test for unsoundness of mind in law has no immediate reference to the mere existence of delusion.”
In the still imperfect state of, shall we call it, mental philosophy, it is impossible to lay dpwn any particular definition of insanity, founded on symptoms, which will determine the point where testamentary- capacity ceases, either absolutely or by pressure of undue influence.
“ Jurists,” says Dr. Ray, “ who have been so anxious to obtain some definition of insanity, which shall furnish a rule for the determination of responsibility, should understand that such a wish is chimerical from the very nature of things.”
And, indeed, until within a few years past, the nature' of mental diseases has been but little understood, even by those who have *214made the subject a special study; not until science abandoned its fruitless inquiries into the nature of mind, and directed them to the brain as its local habitation.
“ Whatever opinion,” continues Dr. Ray, “ may be entertained of the nature of the mind, it is generally admitted, at least by all enlightened physiologists, that it must of necessity be put in connection with matter, and that the brain is the part of the body by means of which this connection is affected. Little as we know beyond this single fact, it is enough- to warrant the inference that derangement of the structure, or of the vital actions of the brain, must be followed by abnormal manifestations of the mind. ■ ** * * This vital change is now generally expressed by the term irritation,’ and nothing is implied by it, relative to the nature of this change, more than an exaltation of action. Irritation, then, is the initial stage of the disease—the first in the chain of events of which disorganization is the last.”
Mental disorders are therefore as multiform as are the mental constitutions of the insane—varying in degree and intensity at every stage, from its first departure from the normal course of vital action of the functions of the brain, to the total destruction of the brain itself.
" Mania is characterized by unnatural exaltation or depression of the faculties, and may be confined to the intellectual or to the affective powers, or it may involve them both: and these powers may be "generally or partially deranged. Dementia depends upon a more or less complete enfeeblement of the faculties, .and may be consecutive to injury of the brain, to mania, or to some other disease ; or it may be connected with the decay of old age.” (Wharton & Stille, 60.)
The term, “ moral insanity,” is usually applied to those mental disorders which are confined to the affective faculties, or where the derangement of the affective faculties is the striking feature of the disorder.
*215Diseases which extend over a part of the understanding, or affect one or a few of the moral or intellectual- faculties, are denominated “ monomania.”
Dr. Ray (§ 242) says: .“The more one sees of mental disorder the more, we apprehend, is he disposed to believe that this integrity of some of the functions in partial insanity is rather apparent than real; that the disease, however limited, seldom, if ever, fails to irradiate its morbific influence to a greater or less extent.”
In this view Wharton and Stille, Taylor and Beck concur, and we may, therefore, regard it as settled that moral insanity and monomania, or partial insanity, are different types of' madness, and never fail to involve all the mental faculties in a greater or less degree; and whether, in their ravages upon the human mind, they only weaken and partially impair, or destroy altogether, testamentary capacity, must be determined from a view of all the facts in each particular case.
Now, that the mind of Col. Washington, at the date of the execution of the will, was considerably impaired by disease and the infinnities of age, if not totally incapacitated to make a valid will, has been affirmed by the probate court, by the jury who heard all the witnesses examined and all the testimony introduced, as well as by the court in which it was tried, and when we compare the facts as disclosed by the record in this case with the rules of law as laid down by the highest authorities on medical jurisprudence, we find they are fully sustained.
Col. Washington was remarkable for peculiarities and idiosyncracies of thought and feeling, which contrasted strongly with the general tone of society, but they never suggested to those who had known him for twenty or thirty years any thought of mental disease. It was the total change in his character, the wdde departure from his peculiar habits and modes of thought and feeling which produced the impression of mental disorder.
*216These idiosyncraoies of Col. Washington, whether they had their origin in any peculiarities of the cerebral organism, or in any great disparity of the intellectual organs, may not have been .inconsistent with robust health of mind. Yet, viewed in the light of science, they involved a greater than usual susceptibility to mental derangement, which, for its development, only required the operation of the exciting causes to which he was unhappily subjected.
Professor Wood, in treating of insanity, says: “In the great majority of cases, insanity is produced by the influence of exciting causes acting upon a predisposition to that disease.” And among the predisposing causes he mentions a tendency to insanity by inheritance, and from a nervous and melancholic temperament— such as have naturally strong passions in excess, as ambition, pride, and love of applause. The rich and cultivated, he remarks, are more subject to it than the poor and ignorant, for the reason that their cerebral functions are, from their position and habits, more liable to over action.' Celibacy favors the inroads of insanity. Excessive mental excitement, whether intellectual or emotional, is probably among the most frequent causes. Examples of this last are found in the exciting struggles for power, influence and wealth. Nor are depressing causes without a powerful influence—such as reverses in business, the loss of friends,.or the triumphs of enemies. So, also, times of great public excitement, whether "of business, war, politics or religion, are'usually attended with a marked increase of the disease; revolutionary struggles, insurrectionary violence, and powerful political commotions strew their course with ruined bodies, minds and estates. (2 vol. Wood’s Practice of Med., 714.)
These manifestations of so marked a change in his character, eo-existing with a like change in his fortunes, observed by so many witnesses, are unmistakable symptoms of mental derangement as recognized by physicians and jurists.
*217“ One of the earliest symptoms of the disease,” says Dr. Bay, “isan unaccountable change in the patient’s social and domestic feelings. He becomes indifferent to those whom he loved the most.” * * * “The higher affections are dormant, while all his relations to his fellow men are viewed through a medium of fear, suspicion, jealousy and distrust. His friends and relatives especially are objects of his suspicions, and nothing can induce him to view them in any other light than as enemies to bis-moral and physical welfare.”
Wharton & Stille remark that “ Extreme irritability, proneness-to anger, suspicion, concealment, obstinacy and perverseness are common.”
Gerhard, in his work on Nervous Diseases, says : “ A dislike of relatives and friends formerly beloved, and even objects of the warmest affections, is well known to be a feature of madness, and belongs particularly to moral insanity.” * *■ * “ A proneness to suspicion is very often manifest; the most trifling circumstances are often sufficient to give rise to a train of formidable apprehensions, which the insane person harbors, and over which he broods until he comes at length to- believe them as matters of fact. The disorder then passes into monomania.” * * *
“ Nothing is more common in morally insane persons than a dread of being poisoned. It is an unfavorable symptom, and marks in the disorder a disposition to become converted into monomania, or into melancholy dejection.’ ”
Bedfield, on the Law of Wills, says: “ The belief in the existence of mere illusions, or hallucinations, creatures properly of the imagination, such as no- sane man could for a moment believe, are unequivocal evidences of insanity.” * * * “ One of the most reliable evidences of insanity is where the individual comes, suddenly to exhibit a marked change in his habits and tastes, preferring what he before avoided or disliked, and where there is no assignable cause for the change, unless it be one affecting mental capacity.’' ******
*218“ Fondness or aversion to particular persons without any special reason.” * * " * * * *
“ Another one of the most undoubted evidences of insanity 'in many persons is the entire surrender of their wills, and the apparent submission to chance' direction, or the caprice of others ; and this surrender of the will often occurs in persons of the strongest understanding and the most self-reliant.”
These authorities, when applied to the facts of this case, compel the inference that Col. Washington’s mind was impaired; but, had his will been just and considerate, and not what the civil law writers denominate “ an undutiful testament,” sufficient capacity to make it might have been inferred.
But, as the will is unreasonable, unjust, and in favor of a party having no claims upon him, and who had 'opportunities for influencing his mind, and used that influence to secure the bequest in his own favar, the inference of testamentary incapacity becomes almost irresistible. (Redfield, 105, note 17, 504, § 14.)
The degree of undue influence which will avoid a will cannot, in the nature of things, he defined. The processes of spiritual influence are inexplicable. It is none the less efficacious when working unseen. It is known only in its opportunities and in its results.
An illustration of undue influence acting upon a sound mind is cited by Bedfield from an opinion of Eyre, C. ‘B., who says: “ Yet, if such a dominion or influence were acquired over him as to prevent the exercise of such discretion, it would he equally inconsistent with the idea of a disposing mind, (as if actual force were resorted to,) and perhaps the most probable instance of such dominion being acquired is that of an artful woman having taken possession of a man and subdued him to her purposes.”
Dr. Taylor (in his Med. Jur., 650,) gives the following: “A person’s mind, in extreme old age, may be quite intelligent, his understanding of business clear, and his competency to converse *219upon and transact such undoubted, and his bodily strength good; but there may grow upon him such a fear and dread of relatives, who may have surrounded him, and on whom he may have become perfectly dependent, that his nervous system is wholly overcome, and he becomes a mere child and tool in the hands of those about him.”
“ But in practice we have always found juries disposed to infer undue influence, or a want of proper capacity, or both, where the will itself seemed to indicate in a high degree injustice and want of proper consideration in the testator, if there was the slightest evidence in support of it. And although, in theory, either want of capacity or undue influence require distinct and satisfactory proof, we could never feel any strong impulse to interpose in behalf of an absurd, or unjust and unequal will, in order to withstand the common sense instincts of a jury against the validity of such an instrument.’’ (1 Redfield, 526, § 37.)
If this most philosophic writer should thus announce his disinclination to'interpose in behalf of an unjust will against the common sense instincts of a jury, upon the slightest evidence, in a case like this we can have no hesitation.
The testimony is clear that. Col. Washington, whose mind was considerably impaired by disease, was extremely susceptible to the influence of others, and Mrs. Hill’s testimony shows particularly the means employed by Denson, the beneficiary in this case, to influence the mind of the testator in his favor.
When we look to the will itself, wherein his estate is conferred upon almost a total stranger, who had wormed himself into his confidence, with the reasons assigned to Sansom for making such an unnatural bequest, the conclusion is irresistible that this will is rather the expression of Denson’s wishes than the will of Col. Washington.