The President of the Senate asking whether any member of the court was prepared to read a written or deliver an oral opinion,
Mr. Justice Bronson, (the only justice of the supreme court present at the argument of the cause,) said that he had no written opinion to present, not having had leisure since the argument was closed to digest the facts of the case, or even to read the numerous authorities which had been cited, amounting to nearly or quite one hundred cases, and that, therefore, he should decline to deliver an opinion. He had come into court solely for the purpose of enabling the court to form a quorum.
Senator Livingston thereupon proceeded and read an opinion, assigning reasons for a reversal of the decree of *296the Chancellor. (The reporter has not been furnished with a copy of this opinion.)
Senator Verplanck orally delivered an opinion, also for a reversal. The reporter has since been furnished with the following opinion, written out by the learned Senator:
By Senator Verplanck.My first impression, on the opening of this cause, was strongly in favor of affirmance. The decision below came up to us with a great weight of authority in the apparent concurrence of the three courts through which the cause had passed; and though this was lessened by the admission, that the affirmance by the circuit judge had been merely pro forma by agreement of parties, for the purpose of bringing up the appeal to this court, still, the very decided opinion of the learned, able and experienced surrogate (Campbell) corroborated by that of the Chancellor, led my mind to a view of the case, which I did not suppose it possible that argument or farther examination could change. The argument of the appellant’s counsel brought me gradually to doubt, and finally to rest in an entirely opposite conclusion, founded, I think, in clearer and more definite views of the law of the case than had governed my first impressions. The conclusion thus formed on the argument has been confirmed by as careful an examination of the decisions in the books and of the voluminous evidence of this case as it has been in my power to bestow since the close of the argument. I am accordingly of opinion that the several orders or decrees appealed from in this case are erroneous, and that the will of Alice Lispenard should be admitted to probate.
Both the law and the facts of the case are submitted to our judgment. Let us consider the first separately.
" In an opinion just read, but prepared some months before the hearing of this cause, in the case of Remsen v. Brinckerhoffi (post p. —,) I took occasion to assert the principle,that the right of testamentary bequest was not, as some great jurists maintain, a mere institution of positive law, hut a *297natural right, subject to the restrictions and regulations of civil legislation, yet not its mere creature. The reasons there stated have a more direct application to the present case than they had to that in which they were advanced, as there they were intended simply as a protestation against an unsound argument. Here they are connected with the principle of the decision, for that in my judgment, though it rests also on other reasons, yet receives much support from those considerations, as they show that the primary legal presumption of law and of evidence must be always in favor of the right of bequest, and of the legal capacity to exercise it, while the restrictions or exceptions are to be taken more strictly.
By our statute, 2 R. S. 4, the former acts of England and of this state are thus re-enacted: “ Every male person of the age of eighteen, and every female (not being a married woman) of the age of sixteen and upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate by will or testament.” The corresponding clause in relation to real estate, 2 R. S. 56, enacts that 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.” The language of both these sections corresponds with that of the statute regulating conveyances, and must be governed by the same decisions, and interpreted and applied in the same spirit. “ Every person capable of holding real estate, except idiots, persons of unsound mind, and infants, seized of or entitled to any estate or interest in lands, may alien such estate at his or her pleasure, with the effect and subject to the regulations prescribed by law.” 2 R. S. 719, § 10. In respect, therefore, to the validity of any devise or bequest, just as in regard to that of any conveyance, whilst the prudent and necessary exceptions of the statute must be respected and obeyed; yet it is always to be borne in mind, that these are only exceptions to a more general rule and to a common right, and must, therefore, *298never be carried beyond the strict meaning and obvious policy and intent of the law. Theoretical and abstract as principle may appear, yet the conclusion to which it leads, will be found to coincide with the rules and decisions of the best authorities, and especially with those cases in our own courts, which have held, as in Jackson v. King, 4 Cowen, 207, that when any act otherwise valid has been sought to be avoided because of mental incapacity, the proof lies upon him who alleges that defect, whilst sanity and capacity are to be presumed until inability is shown; that (as it is expressed by Judge Woodworth) “the disability of contracting applies exclusively to idiots and lunatics, or persons non compos;” that mere weakness of understanding is not enough, but defect of reason must be made to appear, that the imbécil, therefore, does not labor under the general disability of the idiot or insane, although some particular act may be set aside by reason of other facts or circumstances connected with his imbecility.
Let us, then, leaving the consideration of these primary principles, examine how the law of the case stands upon the authority of decisions and the legal interpretation of our statutory language.
Our statute law expressly declares, as we have seen, the right to dispose of property by will, (as of real estate by deed,) to belong to all persons of sound mind and memory, other than those excepted on the ground of infancy or of coverture. The other exception, expressed negatively in the provision as to bequests of personal property, and directly in the corresponding clauses as to other dispositions of real estate by deed or will, is of “ idiots or persons of unsound mind.” What then, is the precise legal intent of these words ? They are' not words of ordinary colloquial language, but they and their converse phrase, “ persons of sound mind,” are drawn from the vocabulary of the law, where they have long been of familiar use, as well in the common law courts as in those having testamentary jurisdiction. Our revisers expressly inform us, in their *299note on Art. 2, chap, vi, pt. 2, § 22, u Of wills of personal property and the prohate of them,” that “ in drawing the above section, (§ 21, as it now stands,) an effort has been made to condense the common law as it seems to be understood by Justice Blackstone.” The passage of Blackstone referred to, (2 Black. Comm. 496,) after stating the civil disability of infants below certain ages, to make a valid testament, adds, “ Madmen, or otherwise non compotes, idiots, or natural fools, persons grown childish by reason of old age or distemper, such as have their senses besotted with drunkenness—all these are incapable, by reason of mental disability, to make any will as long as such disability lasts.” To the same effect is the older authority of Lord Coke, from whom the definitions or descriptions of the modern commentators are drawn. u Unsound mind and memory,” in the sense and use of the law, can mean only such defect of mind and memory as the law notices for some legal purpose, as of disability, of protection, or of exemption. But according to Coke, (1 Inst. 246,) whose authority to this point is recognized by Blackstone, (1 Comm. 303,) “ non compos mentis is the most legal term for all defects of the mind which the law notices. JVon compos mentis is of four kinds: 1. Idiota, which from his nativity by a perpetual infirmity is non compos mentis. 2. zHe 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.” The accurate Comyns thus sums up the several ancient authorities of Coke, Fitz Herbert, Staundford, &c., “ Persons who are non compos mentis are idiots or of non sane memory.” Comyns Dig. Tit. Idiot, (A.) Thus we find, that from Fitzherbert to Blackstone, the phrase non compos mentis is used by the greatest authorities of the common law, as synonymous *300with that “ of non sane mind and memory,” the “ unsound mind ” of modern phraseology and our own statute hooks.
' But the same line of unvarying authorities shows, that in legal intent, the natural defect of mind thus absolutely shutting out persons from the ordinary rights of society, does not consist in a limited degree of intelligence, but in the entire absence of what, in the philosophy of elder times, was termed “ discourse of reason.” The idiot was one, according to Fitzherbert, “ who has not any use of reason, has no understanding to tell his age, who is his father or mother, what shall be for his profit and loss.” F. N. B. 233. Comyns Dig., Tit. Idiot. And the same old and rigid rule is repeated two centuries afterwards by Blackstone: “ A man is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or the like common matters.” 1 Black. Comm. 304. In the same understanding of language, Lord Hardwicke, in Ex parte Barnsley, 3 Atk. R. 167, says u Non compos mentis, or, sinbe the proceedings have been in English, of unsound mind, (which means the same thing,) are legal terms of a determinate signification, understood by courts:' of law, importing not weakness of understanding, but a total deprivation of reason.”. I cite this-as sound and strong authority because, although the later decisions of Lord Chancellor Eldon, in England, 6 Ves. 273, and 8 Ves. 65, and of Chancellor Kent with us, Barker’s case, 2 Johns. Ch. R. 233, have so far overruled the decision in Barnsley’s case as to extend the protection of chancery to persons worn out with age or disease, and become incapable of managing valuable estates and large concerns, yet this does not impeach the accuracy of Lord Hardwicke’s definition. The decisions of Chancellors Eldon and Kent go either to extend the jurisdiction of chancery over lunatics, to those in second childhood and mere dotage, falling under the second class of Lord Coke, (see per Kent, Chancellor, in Barker’s case,) or else, in congruity with another principle of the common law, (which I shall presently notice,) applied *301the preventive and paternal care of the court to guard against fraud or waste arising from mental incapacity, reíatively inadequate to the management of large property, whilst the party might yet, in the eye of the law, be under other circumstances, competent to the common rights and of life. J But it is the unvarying doctrine of the English boólcs, that the “man of mean understanding, yea, though he incline to the foolish sort, is not prohibited to make a testament.” Swinburne 127-8. This ancient rule is thus expressed and reiterated by the latest and best text writer on this subject, Shelford on Lunacy, p. 37: “A person being of weak understanding, so he be neither an idiot nor a lunatic, is no objection in law to his disposing of his estate. Courts will not measure the extent of people’s understanding or capacities; if a man therefore, be legally compos mentis, be he wise or unwise, he is the disposer of his own property and his will stands as a reason for his actions.” The rules and definitions of our own judges, and the decisions of our own courts, are in conformity with those authorities. / Thus we find Judge Woodworth repeating and adopting the definition of Lord Hardwicke: “ The term non compos, of unsound mind, are legal terms, and import a total deprivation of sense.” Per Woodworth, J., in Jackson v. King, 4 Cowen 217, citing 2 Madd. R. 569, and this dictum is cited and approved by Judge Cowen in his valuable and useful work on the “ Jurisdiction of Justices of the Peace.” 2 Cowen’s Treatise, 707. The case just cited, Judge Cowen observes, “ has never been overruled or questioned in our courts,” and “ must be considered as the law of the land, and entitled to the consideration of undoubted authority.”' 2 Cowen’s Treatise 706. It has accordingly been followed and applied recently, in 21 Wendell 142, and 24 Id. 85. It holds, that absolute disability to contract, on account of mental infirmity, is confined to idiots and lunatics, or persons non compos, in the sense of Judge Woodworth’s definition; that mere weakness of understanding is not enough—an entire *302defect of reason must be shown. In the cases in 21 st and 24th Wend., the “ person of imbecile mind ” was still held j-Q pave reason and understanding, and not to be a lunatic, a fool, or an idiot,” in the sense of the law, as respects le- ' . ,. „T gal capacity or incapacity. See also, the opinions of Justice Washington in the United States circuit court, 3 Wash. R. 587; 4 Id. 261.
Ought not this to be so, upon reason and principle ? Is the rule which has come down to us through so many confirming authorities, contrary to right reason or to public policy ? Must not the general rule be such as the decisions and opinions just cited have declared it, upon the reason of the thing itself, independently of all positive law? The substantial and obvious reason of the invalidity of the wills of persons of unsound mind, as well as of their other contracts and legal engagements, is their inability to consent, with knowledge, to the act or bequest. This is clearly stated, with all the lucid succinctness and generality of a legal aphorism, by Sir John Nichol: “ Want of reason must of course invalidate a contract, the very essence of which is consent. It is not material whether the want of consent arises from idiocy or lunacy.” 2 Phill. R. 70. Now the imbecile and feeble mind has the power of consent to matters within its comprehension, and may commonly comprehend the general disposition of property, relying upon the advice and aid of those friends upon whom experience has taught it to rely safely for the prudence of details and the legal effect of the transaction, just as the unlettered or the infirm must do in many of the transactions of life, whatever may be their mental acuteness and activity. In some particular transaction its facts and nature may make it clear that the matter was not comprehended by a dull and ignorant mind, and that therefore his consent was wanting; nevertheless such want of consent cannot be presumed of course, as a presumption of evidence as to any one who has the humblest use of reason. Again—taking mankind such as observation shows us hu*303man nature to be, can any other than this be a safe, pru-. dent, just, or politic rule % When we observe the strange incongruities of human character—the astounding mixture of sagacity and weakness in the same mind—“ the fears of the brave and follies of the wise ”■—when literary biography shews us the discoverers of truth and the teachers of wisdom, like Newton and Pascal suffering under “ the variable' weather of the mind, the flying vapors of incipient lunacy”—when, in ordinary life, it often happens that the most sagacious and prudent in many of the affairs of business, are yet in some point of domestic conduct, or some one matter of opinion or action, guilty of absurdities such as the feeblest minds could not commit, one might almost adopt the startling conclusion of Dr. Haslam, who, after years of professional observation of the phenomena of mental disease, when examined in the remarkable case of Miss VBagster, in answer to the customary question, “Was Miss B. of sound mind 1” replied: “ I never knew any human being was of sound mind.” / So again: if we look around our own circle of acquaintance, every one must have known aged, blind, or infirm persons, unfitted by the state of their minds, or of their senses, for the management of any affairs, and from their necessary seclusion from the concerns of life, entertaining false notions and mixing up the past with the present. Yet these, and such as these, may by the aid of their friends and families,upon whom they have a right to rely, and with a general understanding of their own intent and the effect of their acts, make wills, conveyances and other dispositions of property, which could not be set aside without gross and manifest hardship and injustice. ^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 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.,,-Mf you throw aside the *304old common law test of capacity, then proofs of wild spedilations or extravagant and peculiar opinions, or of the forgetfulness or the prejudices of old age, might be suffic^en^ t° 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 commentator,) 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, p. 39.
But although the weak in intellect, the dull, the stupid, the decayed in mind, do not and ought not, upon any ground of policy, or right or authority, to labor under the personal disability of disposing of their property, which the law prescribes as to u persons of unsound mind,” yet the books abound in cases where the courts, even at common law, have made void the bequests, devises and conveyances of the imbecile. Are such cases contradictory to the conclusions just stated 1 I think, clearly not. They are founded on a different but closely allied principle, perfectly reconcilable with the other, and they are both applicable to cases like the present. By the decisions referred to, wills, deeds and contracts have been held void, when made by imbecile persons; but they were so held not on account of the general and positive disability of the party for the performance of all similar acts, but because of -the relative character of the will or contract itself, and of all\ the external circumstances in proof, to the mental capacity of the party. They have been held void, not because the person making them was incapable of a valid consent to any act or contract, but because the whole transaction taken together, with all its facts, of which the proof of mental weakness was one, showed that the consent, “ the very essence of the act,” (per Sir J. Nichol, 2 Phill. R. *30570,) was wanting to that particular act. Thus, whilst proof of stupidity, gross ignorance, folly or strange particular aberration of opinion, in a mind otherwise unclouded, is alone incompetent to affect the legality of an act of such a person; yet that evidence, when taken in connection with the disposition of the property, the interests and relative situation of those affected by it, and other circumstances may show conclusively, that this particular act of a person laboring under no general disability, wanted his consenting will and understanding; that the sound and disposing mind was deficient in regard to this special matter; that the whole was the result of fraud, of abuse of confidence, perhaps of delusion.
If this distinction were new in our legal system, its policy and propriety are so manifest, and its analogy to the general doctrine of our law on the effect of fraud or error upon contracts so close, that there could be little hesitation now to receive and establish it; but it may be found, either directly expressed or impliedly admitted, as the ground of decision in many adjudicated cases. Thus, in the luminous and elaborate judgment of Sir John Niehol, in Dew v. Clark, 3 Addams R. 79, where a will was pronounced void on the score of a very peculiar morbid delusion, the learned judge stated the question at issue to be, “ not whether insanity in certain other particulars should have the effect of defeating a will generally of the deceased, or even this identical will, but whether his insanity on the subject of his daughter should have the effect of defeating not so much any will, as this identical will.” So again in Ingraham v. Wyatt, 1 Hagg. 381, the will on its face, as well as all the external circumstances, indicated fraud; and as to the testator’s capacity, the judge states, “ the result of the evidence was, that he was a very weak man; that his understanding was very much below the legal standard of perfect capacity; the inertness, inactivity, torpidity of mind, inattention to his large property, were the leading characteristics and symptoms of his weakness;” *306yet it is expressly added,<£ that he might possess a testable capacity; but that he was a person so far liable to be imposed upon as to require the court to look with vigilance into the proofs of the factum.” The common law courts recognize the same distinction. The reasoning of Lord Chief Justice Tenterden in Bell v. Martin, 1 Dow. Parl. R. 386, goes to this result; and we find it repeatedly laid down in American reports, as by Judge Washington, 3 Wash. R. 587, ££ that a man’s capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as for instance to make contracts for the purchase and sale of property.”
The decisions of our own supreme court, 4 Cowen, 207, already cited, involve and confirm the same view of the law. It affords no slight confirmation of the wisdom and justice of this rule, that it agrees with the decision of the French tribunals under the Code, as appears from the case Beauquaire, whose will was established on the ground that its provisions were rational, and the testator capable of comprehending them, though he was incapable of making contracts, &c. by reason of imbecility.! Sirey Rec. des lots et des arrets, Tom. 8, p. 315.
If we then sum up the whole doctrine of the law of wills as affected by mental incapacity, we shall find it just, reasonable and consistent with itself, as well as in perfect harmony with the decisions and rules touching the effect of unsoundness or weakness of understanding in avoiding deeds and contracts. \
The right of testamentary disposition is regarded as a common and natural right, to be restricted no farther than public policy and the necessary evidence of intent and consent absolutely.require. When the testator is shown to possess such a rational capacity as the great majority of men possess, that is sufficient to establish his will. ££ When this can be truly predicated, bare execution is sufficient;” (per Sir J. Nichol, 1 Hagg. R. 385;) no matter how arbitrary its provisions, or how hard and unequal may be its *307operation on his family. On the other hand, when a total deprivation of reason is shown, whether from birth, as in idiocy, or from the entire subsequent overthrow of the understanding, whether permanently, or existing only at the time of execution, further inquiry is needless, the will is itself a nullity, however just and prudent in its provisions, and with whatever fairness of intention it may have been obtained by well-meaning friends. That intermediate class, who fall below the most ordinary standard of sound and healthy minds, whether from the partial disease of one faculty, or the general dulness and torpor of the understanding, are not dn that account interdicted from the common rights of citizens, and least of all from that of testamentary disposal. But their defect of intellect may furnish most essential and powerful evidence, in union with other proof, that some particular will or codicil was obtained by fraud and delusion; that it had not the consent of the will and understanding, and was not executed by one, who, in that respect, was of a sound and disposing mind and memory. As in the former class of cases, there is a general legal disability, because the party from total unsoundness of mind and memory is unable to consent with understanding to any legal act whatever; so in the latter instances, there may be shown an absence of consent to the particular will from inability to comprehend its effect and nature.
Let us now examine how the evidence before us applies to this view of the law, which naturally directs us to two points of enquiry: 1st. Was the decedant mentally incompetent to make any valid testament whatever ?—or, in other words, was she of unsound mind and memory in the strict sense of the law; and 2d. If not so, is there yet evidence sufficient to invalidate this particular will, by reason of the imbecility of the party taken in connection with the dispositions of the will, the situation of the parties, and all the circumstances of the factum ? [Here Senator Ver*308planck adverted to the evidence in the case at some length, and then proceeded as follows:]
With regard to the first point of enquiry: We find that the numerous, respectable and intelligent witnesses in support of the will, represent the testatrix as a person of very dull and feeble mind from infancy, as laboring under physical and external disadvantages, being from childhood very near sighted; unwieldy in person and ungainly in manner; of neglected education, having been early suffered to indulge in the free and indeed immoderate use of liquors; that in consequence of all this, she impressed those who saw her transiently with the belief of her being a perfect idiot, yet upon fuller knowledge showing herself, though dull and ignorant, possessed of reason and understanding far above idiocy; having a general notion of property, and knowledge of her possessing some, with the right to dispose of it:—finally, as exercising some of the higher moral faculties in overcoming (with the aid of friendly .care and remonstrance,) her habits of intemperance, and in her last days understanding and expressing the hopes and consolations of religion. On the other hand, is a large array of witnesses, many of them highly respectable and intelligent, who concur in representing her, not only as silly and stupid but as utterly incompetent to the understanding of any right, or the care of herself in any particular. Much of this apparent conflict of evidence may, (as is common in such cases,) be resolved into differences, not as to facts, but of opinions or conclusions formed according to the varying circumstances of observation. If, however, we regard the evidence as in direct collision, we shall find the testimony of those who represent Alice Lispenard as having been merely a dull and imbecile, but not an idiotic person, as much outweighing those who depose to the lowest grade of intellect: 1st. In number. 2d. In the means of information or observation, as members or inmates of the family, physicians, &c. 3d. In station, education, and intelligence—I mean, taken together, without denying the *309respect due on this last score to several witnesses in opposition to the will. Among the former are the subscribing witnesses, who are constituted by statute the first and necessary evidence, both of whom attest positively to her capacity to make a will. They were both of them experienced and respectable physicians; one of them, Dr. Neil-son, long conversant, as appears from our own legislative documents, with the observation of mental infirmity, as a physician of the Bloomingdale Asylum; the other a physician of the family, who had “ known Alice for ten or fifteen years; had seen her frequently during that time, almost every day; had opportunities of judging of her capacity, from having paid particular attention to her as an observer for six or eight years past.” With these gentlemen agree other medical witnesses. “ Mere opinions,” says Judge Washington, <e of witnesses as to mental capacity are entitled to little or no regard, unless supported by good reasons, founded on facts which warrant them. To this, as a general rule, the opinions of medical men may be considered as an exception.” 3 Wash. C. C. R. 587. These opinions are supported by the testimony of respectable clergymen, intimate or resident in the family; by members of the family; by the late Charles Graham, an eminent lawyer and family friend; by Mr. Davison, a wealthy neighbor, with many others. Now all this evidence is so direct and positive, so affirmative in its character, that allowing for all the exaggeration, which the wishes and inclinations of some, and the posáble interests of others might give to testimony, still it seems susceptible of being accounted for, only upon the supposition of its substantial accuracy, or else of an extended and complicated conspiracy, comprehending many persons wholly beyond suspicion and utterly without any reasonable motive to lend themselves to a fraud or perjury. This evidence, compared with much of the opposing testimony, has the superiority of affirmative testimony, asserting the possesion of a certain degree of intelligence by Alice Lispenard, over that of a *310mere negative character as to want of intelligence in many particulars. It is not merely the language and opinions of witnesses that I refer to. A few affirmative facts showing understanding, however humble, must, in such an enquiry, directed to the point of idiocy or total want of reason, not of lunacy or disturbed and clouded intellect, outweigh very many negative facts. The affirmative facts prove the existence of mind; and when that is once shown, the negative go to shew only its defects and weakness, not its entire deprivation. According to the old rule, u a wise man does not always shew reason; a fool never does.” The admitted weakness of Alice will go far to reconcile and explain the whole body of testimony,-for that is perfectly recohcilcable with an apparent idiocy. But we cannot, in my judgment, deny the degree of intellect claimed for her by the subscribing medical witnesses, by Mrs. Stewart, and Messrs. Graham, Edwards and others, without total disbelief in their testimony. Taking the whole body of evidence together, it may all stand unimpeached, and the question thus resolves itself into one rather of law than of fact; whether the state of mind, shewn by the whole testimony, was such as to render the decedant incompetent to make any valid will whatever.
The surrogate and the Chancellor have laid great stress upon a clause in the will of Alice Lispenard’s father, which they concur in regarding as “ a strong and controlling circumstance in the case.” The clause is this: “ And as it has pleased Almighty God that my daughter Alice should have such imbecility of mind as to render her incapable of managing or taking care of property, my will further is, that she be allowed for her maintenance the sum of five hundred dollars annually during her natural life; and that my executors pay out of the income of my estate to my said daughter Alice the said sum of five hundred dollars in half yearly payments, to commence immediately after my decease,” &c. The Chancellor and surrogate have cited and relied upon only the first part of the *311sentence, without noticing the subsequent direction. Taking the whole together, it appears to me that the father’s judgment of his daughter’s infirmity is in perfect accordanee with the estimate of Alice’s understanding to be de- ° duced from the evidence in support of the will. He considered her “ incapable of managing and taking care of property,” and therefore, instead of leaving any considerable capital under her control, he charges his estate with an annuity of $500 for her maintenance; but he does not place that annuity beyond her control; on the contrary, he directs it to be paid over half yearly to herself, thus giving her a discretion over a considerable expenditure, which would never have been allowed to a mere idiot. Had she been thus regarded by her father, the payment would have been directed to be made to trustees for her support. That she was incapable of managing property so as to be trusted by a prudent father with any amount of capital is allowed on all hands; but that inability did not render her legally incapable of making a will. In the words of Judge Washington, 6< The capacity may be perfect to dispose of perperty by will, yet very inadequate for the management of other business; as for instance, to make contracts for the purchase and sale of property. 3 Wash. C. C. R. 587. See also 4 Id. 262, and to the same effect are the authorities of Lord Redesdale and others, cited by the attorney-general, 9 Vesey, R. 610. S. P. Wilson v. Wilson, 2 Dow. Parl. R. 283.
I cannot, therefore, resist the conclusion, that the whole evidence establishes that degree of understanding, however low and sluggish, which raised the testatrix above the absolute and general legal incapacity of the mere idiot.
But the low degree of understanding of Alice, as it is admitted on all sides, (with the exception of one or two witnesses, who indicate a higher opinion of her capacity,) leaves the question still open, whether this will was valid as executed with a disposing mind and intent, with sufficient understanding of its effect, and without fraud or co*312ercion. We have before us, first, the testimony of the two subscribing witnesses, disinterested and experienced physicians, who had long known her, and whose attention is positively shown to have been directed to the point of Alice’s intelligence, that at the time of signing, which was whilst in her usual health, she declared, “ that she wished the whole of her property given to her brother, Mr. Stewart,” (which is substantially the whole will,) and that the witnesses had no doubt of her capacity. There is, then, proof from other quarters of her general knowledge and understanding of her possession of property, and power of disposing of it; and moreover, proof of previous declarations of intent,££ that her other relatives should not have a cent of her money; her brother, A. L. Stewart, should have it all;” which is in conformity with her will as executed. Thus, besides the evidence of unimpeached subscribing witnesses, alone ordinarily held sufficient, we have the best collateral evidence of previous intention, unbiassed, save by the natural and legitimate affections of gratitude and attachment to those with whom she had long lived, and who had deserved it by long and persevering care and kindness. There is precisely and amply “ .the evidence of affection and testamentary declarations,” which Sir J. Nichol speaks of as usual and proper,££ where there is any doubt of capacity or suspicion of fraud.” 1 Hagg. Ec. R. 431. The proof of a general understanding of the nature and effect of her will ££ to leave all her property to A. L. Stewart,” is all that the law requires. According to the clear rule, repeatedly laid down by Judge Washington, ££ It is sufficient if the testator has such a mind and memory as enable him to understand the elements of which the will is composed; the disposition of his property in its simplest form.” 3 Wash. C. C. R. 587. 4 Id. 264. To require more than this would be generally to exclude females, ignorant persons, and persons laboring under violent and painful disease, from the power of testamentary disposition.
V
*313But in almost every case of disputed capacity, whether in relation to testamentary disposition or to contracts and conveyances inter vivos, the act or will itself has, in its nature and effect, been judicially regarded as an essential and most important part of the evidence of capacity. See per Justice Jebb, of the Irish common pleas, and Lord Chief Justice Tenterden in Bell v. Martin, 1 Bows. Parl. R. 386. Jackson v. King, 4 Cowen, 207; and Brogden v. Brown, 2 Addams’ Eccl. R. 441, 449. In this last case, the following strong language is used by Sir J. Nichol: " Such an alleged will, the court may readily presume that the testator would acquiesce in and adopt, if not wholly deprived of consciousness; and mere acquiescence and adoption in such a case would so compensate for any want of direct evidence of instruction given a priori, that proof of this alone, in conjunction with any whatever glimmering of capacity at the time of execution, would be good to support the will, and would sufficiently indicate mind and volition to justify a court in pronouncing for it as a genuine and valid will in my judgment.” If the testamentary disposition be in itself consistent with the situation of the testator, and in congruity with his affections and previous declarations; if it be such as might have been naturally expected from one so situated, this is itself rational and legal evidence of no small weight to testamentary capacity; whilst the reverse will alone furnish occasion of doubt, demanding other evidence to refute it. The rationality of the act goes to show the reason of the person. This rule has been repeatedly applied in the English courts in cases of doubtful capacity from age or deathbed disease, and the reason applies equally to doubt founded upon connate imbecility. Cook v. Gould & Bennett, 1 Hagg. R. 577. King v. Farley, Id. 502. Waters v. Howlet, 3 Hagg. R. 790. Bird v. Bird, 2 Hagg. R. 142. Marsh v. Tyrrel, 2 Id. 84. Martin v. Wotton, 1 Lee Eccl. R. 130. Bittleston v. Clark, 2 Id. 229. I am indebted for reference to these last cases to the excellent work *314of our countryman, Dr. Ray, on the “ Medical Jurisprudence of Insanity,” a work of great learning and ability, to which I am also indebted for other more general views of the doctrine and philosophy of legal capacity and its evidence. Ray’s Juris. Insanity, § 221. The same doctrine is recognized in the French decision in Beauquaire’s case, reported by Sirey, on which also see Dr. Ray’s remarks and summary, § 84. The will under consideration appears to be just such a one, as Alice Lispenard would naturally have. made, in favor of those whom she had for years looked to with respect and gratitude; whose care had rescued her from neglect, raised her in moral character, ■and in some degree enlightened her understanding. Had the will been otherwise, had it bequeathed her .property, contrary to her former declarations and natural preferences, without the knowledge or advice of those of her family with whom she resided, and to other relatives to their exclusion, this, to my mind, would alone, in one of her rate of intellect, have raised a presumption of fraud, or of want of proper disposing understanding, requiring other testimony to explain it and establish the will.
I shall vote for an unqualified reversal.
S.enator. Scott, also delivered an oral opinion for rever-sal. The. repórter, has since been furnished with the following opinion,.written out by the learned Senator:
By Senator Scott.Was Alice Lispenard at the time of -making.her will, capable of making a legal disposition of her property 1 All persons except idiots, persons of unsound mind, married women and infants, may devise their .real estate by last will and testament. 1 R. S. 56, § 1. - The inquiry is confined to the exceptions in the statute: “ Idiots, persons of unsound mind.” Idiocy, sometimes called fatuitaS) is usually a congenital disorder, consisting in a defect or sterility of the intellectual powers, not like lunacy or madness, which is a perversion of intellect. *315Chit. Med. Jur. 347. It is not difficult to perceive extreme cases of deviation from sound intellect, yet in the gradation from a wise man to a fool, we frequently find the light and shade so blended, that we look in vain for the line which divides one from the other. No one has discovered a mental gage, by which we can test the strength or weakness of the human mind. Some attempt has been made by legislative exposition, in the act of 11 Geo. 4, and 1 W. 4 Ch. 64, which declares the term lunatic shall extend to any idiot or person of unsound mind, or incapable of managing his own affairs. This statute occupies a broader but not a more certain ground than ours, and the question recurs upon the single fact, the capacity of the testatrix, and this fact should have been decided by a jury. If this cause is to be decided upon its merits, the court must occupy the place of the jury. We have been presented with an octavo volume of 317 pages, containing the testimony of some seventy witnesses, and that very contradictory. The testimony on the part of the respondents is principally of a negative character. The witnesses thought or believed the testatrix an idiot, because she did not converse; said little, and appeared stupid, and they formed their opinions from her silence and manner, it is in evidence that she was very near sighted, was in the habit of intemperance in the early part of her life, and was very awkward in her person. This will at once account for the neglect of her education; her apparent stupidity and vulgarity, the neglect of the family, and a disposition always to place her in the back ground. The example set by them would of course be followed by visitors and strangers. The testimony on the part of the appellant is affirmative; it does not rest, as on the part of the respondents, upon the testimony principally of domestics, many of whom were ignorant and prejudiced, and spoke of unimportant events, that happened thirty years ago; but upon the evidence of several intelligent medical witnesses, not casually acquainted with the testatrix, but who had known her and *316were in habits of intercourse with her for the last ten or fifteen years, and some for twenty five years before the exe" °f her will, particularly fitted from opportunity and education to give a sound opinion; men of science, and of high moral worth in our community. They testified that the testatrix had a good deal of sagacity; that her memory was good and even extraordinary, and her ideas well arranged; that she possessed the ordinary qualities for observation and reflection, and reasoning powers of mind; and they state an important fact, viz. that she abandoned the use of all intoxicating drinks the latter part of her life, which explains her alteration of character. The capacity to arrange our thoughts is, perhaps, the strongest evidence of a sound mind; at all events it is proof against the existence of démeníia: in which all writers on medical jurisprudence agree.
One of the most important rules to assist in the discovery of the truth in this case, is to compare the intelligence of the witnesses on both sides. All other things being equal, the want of capacity in the witness to judge, makes his opinions of little weight. In following up this rule, the preponderance is greatly in favor of the appellant. I cannot therefore concur with the Chancellor, in the face of the testimony of highly intelligent witnesses, that a child of eight years of age would be as competent to dispose of her property by will as the testatrix; nor can I concur in the opinion that the declaration in the will of her father, that the imbecility of her mind was subh as to render her incapable of managing or taking care of her property, is a strong and controlling circumstance in the case. Its importance is weakened exceedingly, when by that very will he allows her five hundred dollars annually, and directs it to be paid to her half yearly, leaving this amount at her own disposal. Why this was done, if she was so imbecile as to be unable to manage or take care of her property, is as inconsistent as unaccountable! It would have been more in keeping with such a singular and unnecessary de*317claration, to have placed this annuity in the hands of trustees, to be expended at their discretion for her support. It is in the power of a parent to deprive his child of his estate; but, as he cannot transmit to his descendants his intellect, so he cannot deprive them by last will of that mind which God has given them.
It is well settled, that every person of the age of discretion, is presumed to be of sound mind and memory until the contrary is shown, and this rule holds as well in civil as in criminal cases. 1 Hale. Hist. P. C. 33. It is contended that this court cannot find the facts; that it belongs to a jury to do so. If this position is true, then the court cannot decide upon contradictory testimony. Without a judgment on the facts, the rule of presumption must obtain, that the testatrix had a sound mind, because the contrary cannot appear, except by the finding of facts by the court. I have no doubt upon the merits, that Alice Lispenard was capable of making a testamentary disposition of her property. I see nothing in the circumstance of her making Alexander L. Stewart her devisee, calculated to throw doubt upon her capacity; but on the contrary, it was perfectly natural that she should give all her property to her brother-in-law, whose family had always bestowed upon her their most affectionate attentions, exhibiting a great contrast with the neglect of other branches of the family. Gratitude, affection and resentment all conspired to deprive those of her property whom she disliked, and to give it to those whom she loved best.
Senators Dickinson, Nicholas, Hull, Hunter, and Root also delivered brief oral opinions. The President of the Senate remarked that he found himself in the same situation with Mr. Justice Bronson; not having been able to form an opinion in this case satisfactory to himself, he should decline to vote upon the question of affirmance or reversal.
*318Upon the question being put, Shall this decree be reversed ? the members of the court divided as follows: .
^ie affi'rmative: Senators Dickinson, Furman, Hopkins, Humphrey, Hunt, H. A. Livingston, Peck, Platt, ' 1 Root, Scott, Yerplanck, and Works—12.
In the negative: Senators Clark, Ely, Hull, Hunter, Johnson, and Nicholas—6.
Whereupon it was proposed to enter a decree reversing the decree of the Chancellor, and the previous decrees of the circuit judge and surrogate, and directing the will of Alice Lispenard to be admitted to probate.
Mr. Justice Bronson objected to the entry of such decree, and insisted that instead of directing the will to be admitted to probate, a deeree should be made directing a feigned issue to be made up to try the questions arising upon the application to prove the will.
Upon the question of settling the form of the decree, the counsel for the appellant were heard: They insisted that this court had not the power, in a case like the present, to award a feigned issue. Where the decision of the surrogate upon an application to admit a will to probate is reversed by a circuit judge, upon an appeal to him, and the reversal is founded upon a question of fact, the judge is required by statute to direct a feigned issue to be made up to try the questions arising upon the application, 2 R. S. 10, § 57; but where the decision of the surrogate is affirmed or reversed upon a question of law, the judge has no such power; his only duty in such case is to remit the proceedings to the surrogate and certify the decision made by him. 2 R. S. 505, § 97. From the decision of the cir-_, cuit judge an appeal lies to the Chancellor, and from'his decision to this court, but neither chancery or this court can award a feigned issue in a case where the circuit judge would not have authority to make such award. All an appellate court can do is to render such judgment as the *319court below ought to have given. The question here, is not a question of fact; it is a question of law, viz: had Alice Lispenard sufficient mind and understanding, judging from the facts disclosed, to make a valid will 1 Do the facts show that she was an idiot or non compos l The witnesses present at the execution of the will testify fully to her capacity at that time, and beyond that there can be no inquiry,where the capacity of the decedant was not called in question by a course of legal proceedings during his or her life. But were it otherwise, and should it be admitted that the question in this case was a question of fact, and that in the exercise of a sound discretion this court may send the case to a jury, it is asked with great respect, why send this case to a jury after having been passed upon by a court consisting of so numerous a body as this court of dernier resort.
After hearing counsel, forms of decrees were submitted by Mr. Justice Bbonson and by the counsel for the appellants.
Senator Vebplancic remarked that the motion to send down the cause to trial before a jury upon a feigned issue, was made upon the ground that the reversal here is on a matter of fact and not of law, and that therefore such an order for a feigned issue must be directed in conformity with the provisions of 2 R. S. 10, § 57, respecting appeals from surrogates to the circuit judges: “ If it shall appear to the circuit judge that the decision was erroneous, he may by order reverse such decree; and if such reversal be founded on a question of fact, shall direct a feigned issue to be made up, to try the question arising upon the application to prove such will.” In regard to this motion he said he must first suggest to the consideration of the court whether it be correct that the judgment had been reversed “ on a question of fact.” The whole inquiry was a mixed question of law and of fact, and as often happens in such *320cases, it was not easy to draw the line so as to discriminate precisely what belonged to the one, and what to the other; esPecially as either might affect the judgment of so numerous a body as this court. Yet he was inclined to the opinion that the reversal was not founded upon the denial or disbelief of any fact assented to, or relied upon in the courts below. We agree in the fact, he said, of the imbecility of Alice Lispenard, but we differ as to the legal effect of that degree of weakness, upon the legal distinction between idiocy and imbecility. We have done what the supreme court did, in the cases 21 Wendell 142, and 24 Id. 85. We hold the conclusion below to be erroneous, because, in a mixed question of law and fact, the facts were applied to an erroneous view of the law. Still he said he rather suggested this for the consideration of the court, than relied upon it as necessary for the decision of this motion, since the law and the fact are here most clearly intertwined throughout, and he had the greatest reluctance to claim for the adjudication of law any question beyond its strict and recognized domain.
But there were other reasons, he said, which to him were quite conclusive why the court should not now send down this case for farther and expensive litigation and longer delay—a case which- had already been pending for six years. We learn, he said, from the statements of counsel on both sides, as part of the facts of the case, that the appeal to the circuit judge was pro forma merely, for his affirmance by consent, that the cause might come up to this court for final adjudication. This court was the tribunal selected for decision of all the questions, by both parties, and the right or chance of resort to a jury was thus expressly waived on both sides. We sit here, he said, as it were, their chosen arbitrators, as well as judges of the land. Nor are we under any obligation by law, even should our reversal be on a question of fact, to direct a feigned issue as the circuit judge is bound to do. The powers conferred by statute on this court are much more extensive. On *321any “ order or decree brought by appeal from the court of chancery,” this court has “power to reverse, affirm or alter such order or decree, or to make such order or decree therein as justice shall require.” 1 R. S. 166, § 27. Nothing can be broader than this language. There are unquestionably, ordinarily, advantages in arriving at truth, through the living present witness, which a jury may possess; but here, having the evidence before us, in the shape in which it has satisfied both parties that it should be judged, unless there are very great doubts indeed as to some point of fact, (of which he said he was not sensible,) he would be reluctant to think that the ends of justice would be promoted by the court declining a final decision under any circumstances. But at present, he said, the usual advantages of a jury trial would not be obtained, as since the examination was taken, nearly six years ago, before Surrogate Campbell, several of the most important witnesses in support of the will had died, viz: Dr. Graves, Mr. Davison, Mr. Charles Graham, and he thought others—a longer delay, at the age of many of the witnesses, will, according to the ordinary probabilities of life, increase that number, if it has not already done so. A jury would then decide, in great part, as we must do, upon written or printed documents. Constituted as this court is, he said, we are, except for the purpose of oral examination, as good a jury as the parties can well obtain. It therefore seems to me, he said, that under the peculiar circumstances of the case, “justice does not require” of us any decree other than the final judgment of reversal, and the order that the will propounded be admitted to probate.
Mr. Justice Bronson observed, that if the case had not been duly passed upon by the circuit judge, the appeal should be dismissed as irregularly here. But assuming it to be regularly here, it is now insisted that this case presents questions of law, and that therefore a feigned issue *322should not he ordered. It is said that the subscribing witnesses fully testify to the capacity of Alice Lispenard, fr°m which it is sought to be inferred that the testimony t^lose witnesses is entitled to greater consideration than that of the other witnesses in the case-. This was not so, he said except where general incapacity was established, and the object was to prove a lucid interval at the time of the execution of the instrument. It had also been urged, that the question whether the testatrix was an idiot or non compos could not be raised, except as to the state of her mind at the very time of the execution of the instrument, unless such question had been agitated during her life-time. He said he could not subscribe to this doctrine. The question presented by the appeal was as to the capacity of the testatrix; and upon that point, there was a conflict of testimony, raising of course a question of fact, and not a question of law. In Odell v. Buck, 21 Wendell 142, which had been referred to, the verdict was manifestly set aside as against evidence, as the new trial was granted on payment of costs. In relation to the power of this court, he observed that the court is authorized to render such judgment as ought to have been given by the court below; but it has no power over the surrogate,, or over the circuit judge, beyond what is conferred by the statute. When on an appeal -from the decision of the surrogate, the circuit judge reverses "the decision, and the reversal is founded upon a question' of fact, it is his'duty ;to direct a feigned issue to be máde up to try the question-; and such should be the course of this court.
The decree as drawn up by Mr. Justice Bronson, and submitted by him for adoption, after the usual introductory matter, was in these words:
“ It is ordered, adjudged and decreed, that the decree of the surrogate of the city and county of New-York in this matter, the decree of the circuit judge of the first circuit, affirming the decree of the surrogate, and the decree of the *323Chancellor affirming the decree of the circuit judge, be and the same are hereby reversed; and it is further ordered, adjudged and decreed, that a feigned issue be made up to try the questions arising upon the application of Alexander L. Stewart to the surrogate of the city and county of New-York, to prove the instrument or paper writing propounded as and for the last will and testament of Alice Lispenard deceased; and that the said issue be tried at a circuit court to be held in and for the city and county of New-York; and it is further ordered, adjudged and decreed, that the proceedings be remitted to the court of chancery with directions to make the proper order for carrying this decree into effect.”
And on the question being put, Shall the decree he thus entered 7 the members of the court divided as follows:
In the affirmative: Mr. Justice Bronson, and Senators Clark, Ely, Hull, Hunter, Johnson, Nicholas, and Scott—8.
In the negative: Senators Dickinson, Furman, Hopkins, Humphrey, Hunt, H. A. Livingston, Peck, Platt, Root, Yerplanck, and Works—11.
The decree as drawn up by the counsel for the appellant, and submitted to the court, after the usual introductory matter, was in these words:
11 It is ordered, adjudged and decreed, that the decree of the surrogate of New-York made in this cause, and of the circuit judge and chancellor affirming the same, be and the same are hereby reversed; and it is further ordered, adjudged and decreed, that the will propounded before the surrogate in this cause, is the will of the testatrix, Alice Lispenard; and that at the time of making the same, the said Alice Lispenard was of sound mind and memory, and capable of disposing of her property by will; and it is further ordered, that the same be admitted to probate, and that the proceedings be remitted, &c.”
*324And. on the question being put, Shall the decree be thus entered 1 the members of the court divided as follows:
In the affirmative: Senators Dickinson, Furman, Hopkins, Humphrey, Hunt, H. A. Livingston, Peck, Platt, Root, Scott, Verplanck, and Works—12.
In the negative: Senators Clark, Hull, Hunter, Johnson, and Nicholases.
Whereupon the decree as drawn up by the counsel for the. appellant, was accordingly entered.