The opinion of the court was delivered.
by Read, J.Insanity and its treatment have, of late years, been the subject of close and accurate scientific investigation, which has modified some of the doctrines laid down by eminent judges, or rather, their application to particular cases. Insanity is a disease which may be either general or partial, and the opinion of Lord Brougham in Waring v. Waring, in the Privy Council, July 17th 1848, in relation to partial insanity or monomania, and approved by Lord Penzance in Smith v. Tebbitt, 36 L. J. R., N. S., Probate Court, 97, August 1867, has been shaken if not overruled by the Court of Queen’s Bench, in Banks v. Goodfellow, *35139 L. J. R., N. S.,Q B. 257; 5 L. R., Q. B. 54, on the 6th July 1870, Lord Chief Justice Cockburn delivering the opinion of the court. The opinion is a very learned and elaborate one, citing the opinions of foreign text writers, and also American decisions, and holding that partial unsoundness not affecting the general faculties, and not operating on the mind of a testator in regard to testamentary disposition, is not sufficient to render a person incapable of disposing of his property by will, and this seems to be the opinion of Dr. Ray, in his treatise on the medical jurisprudence of insanity, 5th edition 1871, ss. 302, 303.
If unsoundness of mind is proved to exist on the day that the will is made or on the day the instructions are given, it is certainly permissible to trace the unsoundness both before and after that period, up to the very moment of the decease of the alleged testator. This necessarily opens a wide door to the admission of evidence; subscribing witnesses, of course, testify to the state of the testator’s mind, and in addition to the facts, give their opinion. The same is the case with medical men, who, as experts, may give their opinion upon hypothetical cases or upon the facts proved: 1 Greenleaf’s Ev., s. 440. In Pennsylvania it has always been the rule, that after a non-professional witness has stated the facts upon which his opinion is founded, he is permitted to state his opinion as to the sanity or insanity of the testator: 1 Redfield on Wills 141. From Rambler v. Tryon, 7 S. & R. 90, decided by Judge Duncan in 1821, and Wogan v. Small, 11 S. & R. 141, decided by Chief Justice Tilghman in 1824, to Titlow v. Titlow, 4 P. F. Smith 216, in 1867, and Dickinson v. Dickinson, 11 Id. 401, in 1869, our decisions have been uniform on this point.
Ozias Potter had a wife and an adopted daughter whom he had taken in 1861, when she was a little girl, and to both of whom he was affectionately attached. He had been in business with Mr. Wonderly, under the firm of Potter & Co., which appears to have existed, in some shape or form, up to the time of his death on the 6th September 1869.
His will was drawn by General Robert Fleming, and is dated the 27th March 1869. The instructions were given by the decedent to General Fleming, on Good Friday, the 26th March, in the evening, in the bed-room, no other person being present. The will was drawn in General Fleming’s office and was executed the next evening, Mr. Weiss and the general being the witnesses. Neither the wife nor daughter ever knew of this will, the existence of which was known only to the witnesses. From the testimony of Dr. Richter, the attending physician, it is clear that he was entirely unfit to make a will, in which he is supported by the direct and positive testimony of Mrs. Potter.
In 1863, Mr. Potter had a severe attack of small-pox, which shook his constitution and evidently impaired both mind and body,- *352and changed his character. In11867, he was afflicted with the heart disease, which gradually increased, affected his brain and finally terminated his life. About March 1867, he made a will, the contents of which were proved by General Fleming who drew it, Mr. Wonderly and others. This will provided amply for his wife and daughter, and was made with a full knowledge of the value of his property, and this is the only will any one knew of, excepting the witnesses to that of the 27th March 1869. He ceased transacting any business in August or September 1868, and his condition is traced up till he went south, on the 27th January 1869, accompanied by Mr. Wonderly, to take care of him, and returned 9th February 1869, not improved; and his disease, with dropsy on the chest, had a powerful effect upon the brain. His mind became filled with visionary speculations demanding large capital, and the supposed ownership of property that did not belong to him. He often spoke of his will, describing its provisions as in that of 1867, and never in any way alluding to that of 27th March 1869, as if he had entirely forgotten its execution. The evidence of the medical witnesses and of the others who knew Mr. Potter well, was very strong in proving that he was incompetent to make a will on the 27th March 1869. Mr. Potter’s property was a little over $30,000, and he ordered at least $2000 to be expended in purchasing a suitable lot in a cemetery (having one already), and to erect thereon a suitable monument. He gives his wife their residence during her natural life, his household and kitchen furniture, and $1500 during her natural life. If she claims her dower, these bequests to be null and void. Me never even names his daughter Ella. To Bulina and Sarah Pidcoek he gives a house and lot during their natural lives. To said Bulina and Sarah, each $400 per annum, during the natural life of each. For the purpose of paying these annuities, amounting to-$2300 per annum, and $400 per annum as a compensation to said trustee, he directs a sum to be paid him to be invested to produce those sums. The residue of his estate he gives to the city of Williamsport, for the benefit of their poor.
Mr. Smith, the trustee, renounced the legacy to him, and the city of Williamsport treated theirs in a similar way.
It was a cruel and unjust will, and the first and last provisions for the monument and the poor were perfectly absurd, in view of the small estate he died possessed of.
The learned judge delivered a very clear and sensible charge to the jury. He affirmed the plaintiffs’ 3d, 4th, 5th and 7th points, and as the plaintiffs must have known was his duty, he negatived the 1st point. The 2d and 6th points were properly answered. Whatever, therefore, is assigned for error, either as to these points or as to the charge, is not sustained. These remarks dispose of the 12th and 13th errors assigned.
*353The first ten errors assigned are disposed of by the remarks already made, and as to the 11th error, the court were right in rejecting evidence of general reputation.
I submitted the paper-books to Dr. Isaac Ray, who has favored me with a most careful analysis and review of the facts of this case, and thus closes it with these words: “ In view of all these facts, I cannot avoid the conclusion, that in March 1869, Ozias Potter did not possess ‘a sound and disposing memory.’ ”
Judgment affirmed.
The following is the review of Dr. Ray, directed to be reported as a note to this case:—
“ If the testator labored under any form of mental disease, it was not that of delusion concerning his wife or daughter, nor that of mania marked by incoherence, irregularity and excitement. The only kind of mental disturbance that can be alleged with any show of reason, is that which is the sequel or accompaniment of other bodily disease, and which is indicated rather by weakness of judgment, loss of memory, imperfect appreciation of one’s relations to others, disregard of little proprieties, freaks and caprices, vacillation and change, than by strange notions or disorderly behavior. It must be admitted that the mental disturbance, if any such existed, was not very demonstrative in its character, and was obvious only to those who had intimate relations with him.
“ The question then is, whether the evidence showed any such mental disorder as would render the testator incompetent to make a will. And here it must be borne in mind that such mental disorder is often exhibited in an unsteadiness and weakness of mind obvious enough to the careful observer, but from lack of any striking incident, not easily proved to others. Hence it is that those who have had the best opportunities of observing the patient, are obliged, when required to give the reasons for their belief, to resort to particular incidents which made much less impression on themselves, than those general habits of thinking and feeling of which they can convey but a very imperfect idea to others. However, it is the former which furnishes the most available proof of mental disorder, and we are bound to inquire how far such proof is obtained from the evidence in this particular case.
“ His wife testifies that ‘‘ ever after he had the small-pox, in 1863, he was nervous and irritable, which condition increased until his death.’ (35.)
“ This fact shows that the health of the brain had been more or less impaired, and this effect was intensified by the subsequent disease of the heart. Wonderly, who had better opportunities of observing his mental traits than any one else out of his own *354family, says that he ‘ first noticed failing of mind in 1868,’ and it appears that in consequence of this failing, he ceased to do business in connection with the firm. James Smith, who also had good opportunities of observing the testator, says he stated to him (Smith) that he gave up charge of business ‘ because he did not feel well enough to attend to it.’ (43.) Smith also says that from 1866 the testator spoke of a ‘pressure on his head,’ and ‘it felt so bad that his memory was affected.’ Webster, who worked for him, and saw him every day, says he observed ‘ a marked change in his mind’ ever since 1867; ‘ he did not seem to be the same man he was; he had different views of things; his mind seemed to be bewildered after he came back from south.’ Henry Smith says, in regard to some business transactions, that he would not have understood clearly what he was doing, unless his bookkeeper had told him it was all right.’ ‘In March 1867,’ he proceeds, ‘ I would not have made a contract with Potter. I considered him incapable of doing any big amount of business.’ (57.)
“ This evidence, coming from such parties, renders it quite certain that his mind had lost its original vigor and grasp, under the influence of bodily infirmities; but it is very far from showing that Sort of deficiency which necessarily implies testamentary incompetence. Still it may, in consequence of that disturbance of the affective powers which often accompanies this intellectual condition. Patients of this description are often governed by freaks and caprices whereby they are led to undo what they have already done in their wisest moments. A new idea enters their head, and, for a time, it masters them completely. One of the results of this state of things is a disposition to alter their wills. Some old men, whose minds have been weakened by age and infirmity, have a passion for making wills, which indicate not so much a sensible disposition of their property as the occurrence of a temporary caprice or irritation. If discreetly managed by their advisers the humor passes away, and the old will remains unaltered. From the testimony of General Fleming, it would seem that the testator was one of this description of persons. He says: ‘ He had executed other wills prior to this time.’ ‘ As soon as he wrote a new one,’ this witness says, ‘I destroyed the old one.’ (72.) This frequency of making wills, under such circumstances, must greatly discredit his testamentary capacity.
“ But at the very least the mental impairment in question furnishes a foundation on which more demonstrative proofs of testamentary incapacity may be laid. The testimony exhibits a few such, and in this connection they are not without much significance. Wonderly says that when about closing their business (1868) they mutually agreed to buy no more lumber, notwithstanding which, Potter bought one million lath without consulting him, and paid more than the market price. Whether this pro*355ceeded from a lapse of memory, or intentional violation of his agreement, it was equally indicative of mental disorder. He once imagined that some lumber was rotting, and requested Baird to take it away (54) apparently as a gift. Wonderly says the lumber was sound, properly piled and covered, and was sold for $6000 or $7000. (55.) This was some two or three months subsequent to the date of the will, but it unquestionably was the result of an habitual condition that began long before. It was one of those fancies incident to that state of mind, and which, with a little more permanence, might be properly called a delusion. A certain heedlessness of values and of financial proprieties, if I may so speak, very characteristic of insanity, was evinced in his offer to Nicholas to give him a check for $100,000 in furtherance of an absurd speculation he had proposed. (51.) The foundry property he declared to be worth $200,000. (46.) With the same disregard of actual realities, he offered to give Webster a farm (47), and the same kind of extravagant gifts he offered to other witnesses. Even after the will was made he continued to speak of his bequests to his wife and child, as they were in a former will, and though frequently alluding to his provisions for them, he never spoke of the will last made. To avoid the conclusion that he had entirely forgotten it, and thus given a proof of mental unsoundness, it was alleged that this was purposely done in order to prevent remark and dispute. This certainly is possible, but not very probable. If the whole transaction had passed out of his mind it would have been no more strange than his forgetfulness of his arrangement with Wonderly.
“ These particular incidents render it quite certain that his mind was not only weak — deprived of its normal degree of power —but that it had often actually wandered from the track, and became unsound as well as weak. Still, for all that, he may have made a proper will. The question next to be considered is, whether the present is a proper will, entirely free from all influence of mental disease. If it made a disposition of his property very different from that of any former will, and such a disposition as in some important respects would seem unjust and capricious; if it betrayed forgetfulness of certain well-known facts, then it may be fairly inferred that the disorder otherwise manifested, both before and after, had affected his testamentary provisions.
“ By the will of 1867 he gave his wife an annuity of $2700 and the homestead absolutely, and to the daughter $1000 absolutely. By the last will the wife’s annuity is reduced to $1500, with only a life interest in the homestead, and the daughter is not once mentioned nor alluded to. Thus the latter was entirely dependent on the widow, and if she had died immediately after the testator the daughter would have been turned adrift without a penny. No adequate cause for this change is assigned. It does not appear *356that he lost his affection for his wife and daughter, or that they were otherwise provided for. Although professing a desire that the daughter should be educated in the usual accomplishments of young women, and always saying that they would be amply provided for, he does not seem to have apprehended that the bequest to his wife was altogether inadequate for their maintenance and the daughter’s education. The impropriety of this provision is rendered still more glaring when considered in connection with the bequests to the two plaintiffs. These two women had nursed him during his last illness, and somewhat during the year or two previous. Some testamentary acknowledgment of these services would have been quite proper, but the actual bequest of an annuity of $400 to each, with a house and lot, is so out of proportion to the provision made for the wife and child as to raise a suspicion of mental unsoundness. Of course a sane man may do what he pleases with his own — neglect those near and dear to him and bestow his fortune on strangers — but this liberty is not allowed to one who has given indications of mental unsoundness. In his case every provision must be closely scrutinized, and every sign of partiality or injustice will be necessarily viewed with strong suspicion. The bequest to Smith of $400 per annum is of a kind to excite the same feeling, for Smith was not related to him, and had no claims upon his bounty. To gratify a mere caprice at the expense of his wife and daughter can hardly be offered as a proof of a sound and disposing mind. Another provision of the will betrays a lapse of memory scarcely compatible with the idea of testamentary capacity. He directs his executors to buy a suitable lot in a cemetery, and erect on it a monument with corresponding fixtures and improvements. But it seems he had already obtained a lot in a cemetery (32), had made improvements on it (37) and suggested others, and even after the date of the will had visited it, and indicated the spot where he wished to be buried. (47.)-
“It is impossible to escape the conclusion either that while preparing his will he was oblivious of the fact that he already owned a burial-place, or that while visiting this place during the summer of 1869 he had utterly forgotten this provision of his will. Both suppositions are fatal to his testamentary capacity, and render it highly probable that while making his will, the fact that he had an adopted daughter did not occur to him. This failure of memory would not have been more strange than the former actually was. The bequest of the bulk of his property for the support of the town’s poor looks far more like an inconsiderate freak than a wise and benevolent attempt to improve their, condition. Eor this purpose some special appropriation of the funds should have been provided for, whereby some benefits or privileges would have been secured to them in addition to those furnished *357by tbe town. As it is, however, the poor are no better off than they were before. The only effect of his bounty is to relieve the town of Williamsport of some of its burdens.
“ In view of all these facts I cannot avoid the conclusion that in March 1869 Ozias Potter did not possess ‘ a sound and disposing memory.’ ”