The opinion of the court was delivered by
Rowell, J.• This is an appeal from the probate of a testamentary writing as the last will and testament of Madison S. Manley. The exceptions show that the • contestant, who is a daughter of the testator, filed several pleas, which were replied to; but the pleadings are lost, and we do not know what they were, except that it is conceded that one of the pleas set up want of testamentary capacity. The proponent claims, but it is not conceded, that to this plea he replied by way of estoppel the decree *155of the Probate Court hereinafter mentioned, and that the replication was traversed. But as it is uncertain just what issue was formed by the pleadings, and as it seems to have been the purpose below to send the case here for decision on the merits of the question that has been argued, we decide it accordingly.
The statute provides that the Probate Court may appoint guardians of insane persons on application of a relative or friend of such person, representing to the court that such person is insane and incapable of taking care of himself, and praying that a guardian be appointed. R. L. 2136.
The contestant made such an application for the appointment of a guardian of her father, 'which, after full hearing, was dismissed a short time before the making of this will, and the ■question is, whether that decree concludes the contestant from showing that before and at the time of its rendition the testator was of unsound mind and incapable of making the will, it being conceded that there was no change in his mental condition after the making of the decree and before the making of the will.
In order to make the decree conclusive, if otherwise it would be, it must appear that the matter here involved, namely, thé testamentary capacity of the testator, was necessarily there involved and decided.
The fact that one is under guardianship as an insane person is not conclusive against his capacity to make a will while the guardianship continues. Robinson’s Exr. v. Robinson, 39 Vt. 267. But it does not follow from this that the dismissal on the merits of an application for the appointment of a guardian of one as an insane person is conclusive in favor of his capacity to make ■a will. This is manifest when we consider the reasons for the ■decision in the case referred to.
The ground of appointing a guardian of a person as insane is, that by reason of mental weakness or distraction, or both, he is incapable of taking care of himself, and the object of it is to secure proper care of his person and property. Robinson’s Executor v. Robinson, above cited. It follows, therefore, that to refuse the appointment of a guardian of a person as insane, is *156an adjudication that he is not in such mental condition aforesaid as to be incapable of taking care of himseif. It is not necessarily an adjudication that he is not insane at all; but only that he is not insane in a respect nor to an extent that renders him incapable of taking care of himself.
Insanity differs in kind and character as well as in extent and degree.
A man may be insane on some subjects and not on others. He may be insane on one subject and sane on all others. His insanity may be of such a character and run along such a line as in no wise to affect his capacity to take care of himself and his property. The insanity last, mentioned would not warrant the appointment of a guardian over him, as it would not constitute the statutory cause for the appointment; and yet it might consist of such a delusion in respect of a disinherited child as to defeat a will that was the direct offspring of the partial insanity. It seems clear, therefore, that the question here involved was not necessarily involved in the proceedings before the Probate Court, and that its decree is not conclusive in the respect claimed.
Judgment reversed and cause remanded.