The surrogate decided to admit the will ‘to probate; and this is an appeal from the decree made upon that decision. The appellant seeks to reverse the decision of the surrogate, on the ground that, in making it, he adopted an erroneous rule of law. He adopted the rule that has been held to apply to cases where the objection to the testator’s capacity was based on imbecility of mind, arising out of a general decay of the faculties by old age, grief, or other causes; and not on the ground of insanity or insane delusion. Preliminary to this inquiry, however, is another, growing out of the admission of the heirs at law of the testator as witnesses for the contestants, against the objection of the propounders of the will. It is now said that the surrogate erred; and we are asked, on this argument, to strike out of the case the most material portions of the evidence on the part of the appellants. Even if we conceded that these witnesses were improperly admitted, the answer to this demand is, that on an appeal, when the relief sought is the reversal of the judgment or decree, and a new trial before the same tribunal or any other, the court is to take into consideration all the testimony given by the unsuccessful party which was admitted, even erroneously, and on which the court acted in making up its judgment.' For the plain reason that, had the evidence been excluded, the party might have resorted to other proof. This principle is clearly expressed in Elsey v. Metcalf, (1 Denio, 326,) by Judge Bronson. The only exception to this rule is where the court can see that no different state of things could possibly exist, on a new trial. Again; granting that the code does not embrace proceedings of this description, before surrogates, yet it is not entirely clear that the rule contained in the 398th and 399th sections of that instrument is not the rule for a surrogate; since those sections have been applied to existing suits—thus introducing a new general rule, by analogy to which the proceedings before the surrogate are conducted. It is however enough that for the purpose of this argument we must regard the evidence as properly received.
We come then to the main question, whether the surrogate decided the case on an erroneous rule of law. He obviously ap*262plied to the testator the rule provided for idiots and imbeciles, as stated and illustrated in the Lispenard case. There is, however, another class of persons who may come under the definition of “ unsound mind” stated in the statute. (2 R. S. 56, § 1. Id. 60, §21.) The term “ unsound mind" is used in our statute as synonymous with “ non com/pos mentis,” which, according to Lord Coke and Blackstone, embraces four classes of persons; 1. Idiots from birth. 2. Those, who, by sickness, grief, or other accident, wholly lose their reason and understanding. 3. Lunatics. 4. Drunkards, and those who voluntarily, temporarily deprive themselves of understanding. (See 3 Denio, 41.) This is an accurate definition, provided we are to understand the word lunatic in a large sense, as equivalent to madness, or insane delusion, as the term is used by Sir John Hichol in 3 Addams’ Eccl. Rep. 78, and not to a temporary delusion. «
Sir John Nichol, in the celebrated case of Dew v. Clarke. (3 Ad. 79; Eng. Eccl. Rep. vol. 2, p. 441,) says, “ The true test of the absence or presence of insanity I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely delusion. Whenever the patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination; and whenever, at the same time, having once so conceived, he is incapable of being, or at least of being permanently reasoned out of that conception, such a patient is said to be under a delusion, in a peculiar half technical sense of the term; and the absence or presence of delusion so understood forms, in my judgment, the only true test or criterion of absent or present insanity. In short I look upon delusion, in this sense of it, and insanity, to be almost, if not altogether, convertible terms." Adopting this definition of insanity, there is abundant evidence of the unsound mind of the testator. He was under a deep delusion as to his property and circumstances. Being a man worth fifteen or twenty thousand dollars, he was harassed by the ..fear of being sent to the poor-house. He was under a delusion in relation to the efforts of certain individuals to obtain a part of his farm by means of false and fraudulent papers. He was under a delusion *263as to certain individuals being about to deprive him of his liberty and to consign him to the state prison. He was under a delusion in relation to his being compelled to make his will by the threats of other individuals. He was under a delusion in supposing he was pursued by the officers of the law, and actually sought to escape from them by going up into his hay loft and concealing himself. He was under a delusion in his idea of the extreme poverty to which he was reduced, and in his idea that the devil was looking out of the potatoes that were placed before him. He was under a delusion in relation to the necessity for dividing his property for fear it would be got away from him, when he offered to give his mittens to John Brown, his chains to John Piclcert, and his augers to Samuel Pickert. These are some of the delusions which haunted the testator’s mind, and which to him were realities; which drove him to attempt the commission of suicide, at one time; and to effect his purpose by hanging himself, afterwards. He was unwell, and complained often of his head, to many witnesses. He feared his minor children would come to want. He made several wills in the course of a year; by one of which he divided his property equally between his children, saying they were all equally dear to him. As to the will before the court, or one like that in its provisions, he said that it was not his 'will, but "was Adam Keller’s will.
The testator was partially insane, and something more than a monomaniac; for he was under a strong delusion on more than one subject. A monomaniac may make a valid will, where the provisions of the will are entirely unconnected with, and of course uninfluenced by, the particular delusion. But where there is good reason to believe that the will is the offspring of that particular delusion which has seized his mind, and controls its operations, the rule is otherwise. A will thus made, under the influence of a powerful delusion which has not only impaired but perverted his judgment and understanding in relation to subjects connected with the provisions of the will, so as to exercise a controlling- influence in the disposition of his prpperty, is not the will of a testator of sound mind. His mind is unsound quoad the very subject on which he is called to exercise its pow*264ers, in making the will. This then was one of the questions which the surrogate should have considered and decided. (See Dew v. Clarke, 3 Addams, 79; 2 Eccl. Rep. 436; 1 Beck’s Med. Jur. 650, 651.) Again; perhaps the unsoundness of the testator’s mind extended to so many subjects, and perverted his judgment in relation to so many topics, as to obscure and distort his entire mental faculties, and to amount to a general unsoundness of mind that would entirely incapacitate him from making a rational or valid disposition of his property. Those questions, in the aspects of them we have considered, should, we think, have been passed upon by the surrogate. He did not pass upon them, but confined his attention to the general question of imbecility of mind.
[Oswego General Term, April 3, 1853.Gridley, W. F. Allen, Hubbard and Pratt, Justices.]
The decree of the surrogate is reversed; and an issue is awarded, to be tried at the next Herkimer circuit.