Ox Application foe Reheaeing.
Fenner, J.The earnestness, ingenuity, and learning with which the application for rehearing in this case is pressed, and the growing • *1062importance of the subject, have induced us most carefully to review the-voluminous testimony found in the record, and, also, to consider and investigate very closely the legal principles by which courts should be-guided in determining questions of testamentary capacity as affected by mental unsoundness.
The right of testamentary disposition is not, as suggested in the brief of counsel, a mere concession by the law, in favor of the testator, of a function, otherwise properly resting in the law itself, to decide what-shall become of his property after his death.
It is not necessary that we should interpose in the disputes between Grotius and Furgole on the one hand, and Yinnius and Bynkershoeck on the other, as to whether this right finds its origin in the law of nature or in the civil law. Suffice it to say, that the civil law recognizes it as a clear and distinct corollary of the right of property, jus utendi et abu-tendi, under which the owner, provided he harm no- other, may destroy and annihilate that which belongs to him. If lie may thus destroy it, and thereby defeat all possible control of the law, it is difficult to perceive why, in exercising the option of leaving it in existence, he should not have the right of determining its disposition after his death.
The law, moreover, recognizes its own unfitness to regulate such dispositions. Its absolute rules of inheritance necessarily ignore the-myriad circumstances which should properly exercise their influence-over the distribution of the dead man’s estate, such as the differences-in condition, sex, age, infirmity, necessity, of those equally related, and the claims of friendship, love, services, favors and kind treatment. It also considers the protection and care secured for old age or infirmity by the possession of this salutary power. “ It is one of the painful consequences of old age,” says Chancellor Kent, “ that it ceases to excite-interest, and is apt to be left solitary and neglected. The control which the law still gives a man over the disposal of Ms property, is one of the-most efficient means which he has, in protracted life, to command the-attentions due to his infirmity.”
Yan Alst vs. Hunter, 5 John. Chy, 159.
The desire thus to provide for his old age, and to secure such influence over his relatives and friends, is a just and efficient incentive to thrift and frugality; and to be able, even in the shadow of death, to extend his bounty to those whom he loves and who have loved and cherished him, is a consolation in a man’s declining years of which he should not be lightly deprived.
This hasty and partial review of the principles and motives underlying the freedom of testamentary disposition suggests and enforces the greatest reluctance on the part of enlightened courts to interfere with it. To wrest a man’s property from the person to whom he has given it„ *1063and to divert it to others from whom he has desired to withhold it, is a-’ most violent injustice, amounting to nothing less than post mortem robbery, which no court should sanction, unless thoroughly satisfied, either that the dispositions of the will are reprobated by law, or that the testator was legally incapable to make a will. The testator, in the present case, has violated no provision of the law. His will is legal in form. Its dispositions are appropriate and conflict with no requirements of' public policy or of natural duty.
It is not within the description of the testamentum inofficiosum of the Boman law, which only applied to wills disinheriting children or-parents. The testator left neither ascendants nor descendants. The law imposes no obligation to provide for collateral relations, either during-life or at death.
The position which the law assigns them in the order of intestate-inheritance is based, in no degree, upon the idea of duty due them from, the deceased, but simply upon the presumption of affection ; and when, this presumption is rebutted by the facts, their claim has nothing to. rest on and falls to the ground.
A man hath as complete liberty to deprive them of any share in his-estate as if they were strangers to his blood. This testator, however, has not displayed forgetfulness of the ties of consanguinity. He has-left his entire estate to a sister; and those who attack his will are only equally related. They charge that the will is void by reason of the incapacity of the testator, in that he was not of “ sound mind.”
Accepting (as we most unreservedly do) the teachings of both natural and revealed religion, that the human mind is an independent and. imperishable entity, merely temporarily embodied in the human frame, and connecting this idea with the teachings of modern physiology, it-may well be doubted whether there is sufficient evidence of the existence of any such thing as an unsound mind.
A most acute and learned writer on the pathology of insanity says : “ It is an undoubted truth, that the manifestations of the intellect, and those of the sentiments, propensities and passions, or generally of the intellectual and affective powers, are connected with and dependent upon the brain. It follows, then, that abnormal conditions of these powers-are equally connected with abnormal conditions of the brain. But this is not merely a matter of inference, the dissections of many eminent observers, among whom it is enough to mention the names of Greding,. Gall, Spurzheim, Oalmeil, Eaville, Ealret, Bayle, Esquiral and Georget, have placed it beyond a doubt.
Bay’s Med. Jur. g 50.
He proceeds : “ The various diseases included in the general term, insanity or mental derangement, may be conveniently arranged under two-*1064divisions founded on two very different conditions of the brain; the first being a want of its ordinary development, and the second, some lesion of its structure, subsequent to its development. In the former of these divisions we have Idiocy and Imbecility — in the latter, Mania and Dementia.” Bay, § 52.
“ Whatever opinion 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 connexion is ■effected.” Id. 1123.
“ Throughout the whole history of mania, in its various forms, we ■clearly discover the evidence of a bodily disease, of a suffering organ ; and in not a fact respecting it can we discover anything anomalous, or •at variance witli the principles of diseased action.” Id. 1127.
If it be admitted, then, that the brain is not the mind, but merely the physical medium or agency through which the mind manifests itself, we see no sufficient reason for assuming that structural defects or lesions of the brain, a purely physical organ, are mental diseases.
Modern pathology, though it has not reformed the ancient terminology, regards and treats insanity as a purely physical cerebral disease ; of which there are infinite varieties, affecting different functions, ■some curable, others incurable, some permanent, others intermittent, ■some disordering only certain manifestations of the intellectual or affective faculties, others involving many of them, and some the whole.
The controversy between jurists as to the effect of monomania, or partial insanity, upon the will-making power, we think, may now be ■considered settled in favor of the humane theory, that such partial insanity does not necessarily destroy the capacity to make a will.
Troplong and Sacase adopt the opinion that the mind is a unity, • •and that, if it is diseased in part, it is diseased as a whole.
Troplong, Don. et Test., vol. 2, ?¿?¿ 451-7.
Sacase, La Folie Consideróe, p. 16.
On the other hand, the vast majority of writers on the civil law agree that insane delusions, monomania, or partial insanity, do not destroy the power of making a will if the testamentary action was unconnected with the particular derangement of the faculties.
Demolombe, O. N., B. Ill, T. 2, ch. 2, § 330.
2 Pothier, Ob. Appendix, 24.
Hoffbauer, Med. Legale.
Paris & Fonblanque, Med. Jur., 1, 302.
LeGrand de Saule, La Folie, p. 146.
■Oasteluan, Sur LTnterdiction des Alienes.
Maygorri’s Institutizioni.
*1065In England, Lord Brougham held that “ we cannot, in any correctness of language, speak of general or partial insanity,” because, he says, “ the mind is one and indivisibleand he holds that the mind must be sound throughout in order to entitle a man to exercise the power of will-making.
Waring vs. Waring, 6 Moore, P. C. C., 341.
The same rule was followed by Lord Penzance, who held that “ if disease be once known to exist in the mind of the testator, it matters not that the disease be discoverable only when the mind is addressed to a certain subject, to the exclusion of all others, the testator must be pronounced incapable.”
Smith vs. Tebbit, 1 L. R. Pro., 398.
The foregoing cases were clearly opposed to the doctrine of Sir John Nicoll, in an older and leading case. '
Dew vs. Clark, 3 Add., 79-205.
They have, moreover, been reviewed and distinctly overruled in a recent case in the Queen’s Bench. The testator was shown to have been confined as a lunatic at a date some years'prior to his death. After his release he continued, to the day of his death, subject to delusions, such as that he was followed and molested by a man who had been dead for years, and that he was pursued by evil spirits whom he believed to be visibly present; but Lord Oockburn, Chief Justice, as the organ of the Court, held that if these delusions did not have influence upon him in disposing of his property, there was no ground for holding the will to be invalid.
Banks vs. Goodfellow, 5 L. R, Q. B., 549; also Broughton vs. Knight, 42 L. J. P., 25.
The current of American authorities is strongly in favor of Lord Cockburn’s view.
Thus, in one case, it is said: “ Eccentricities of conduct, absurd opinions, or belief in things appearing to us extravagant, although they may be and are evidence of testamentary incapacity, do not necessarily constitute it. A man may believe in witches and witchcraft, as it seems this testator did, or, like him, he may have believed his health to have been permanently affected by slow poisons, surreptitiously administered to him, and yet be- competent to make a will where such will is not shown to have some connection with such absurd opinions or extravagant beliefs.”
Leech vs. Leech, 4 Am. d. J. N. S., 179.
In another case it is said : “A man may profess an absurd fondness for music, and play the Pandean pipes, behave like a fool occasionally, may tell his dreams, and call them visions, and believe them; he may be addicted to telling lies about his will, yet we could not, on these ac*1066■counts, pronounce him unfit to manage his affairs, or dispose of his property.”
Turner vs. Hand, 3 Wal. Jr., 120. See, also : 5 Ind. 137, 39 Miss. 19, 47 N. H. 120, 15 N. J. Chy. 52, 8 Watts 71, 24 Geo. 640, 43 Barb. 625, 24 Ain, 241, 1 Litt. 371, 2 R. S. 255, in which this subject is discussed from various points of view.
The Supreme Court of Connecticut, in a leading case, lays down the doctrine broadly, as follows: “If the testatrix had mind enough to know and appreciate her relations as the natural objects of her bounty, and the character and effect of the dispositions of her will, then she had a sound and disposing mind and memory, although her mind may not toe unimpaired.”
Durham’s Appeal, 27 Conn., 192. '
A learned author says: “ There are many cases where mental health is impaired, where old age has caused a certain dilapidation of •the mental structure, where there are curious mental eccentricities of ■thought and action, and, in all these cases, if the individual retains sufficient of the reproductive faculty to collect in his mind, without the suggestions of others, the particulars of the business in hand, and the possible objects of his bounty, if he has the power of retaining these in his mind a sufficient length of time to perceive their relations to one another, and if he is able to form a sound and rational judgment with respect to them, then he is, according to law, in a position to exercise this privilege of disposing of his own property and in support of this he ■cites a multitude of authorities.
Browne’s Med. Jur. of Insanity, | 23.
Again : “ It is essential to the exercise of the testamentary power that the individual should be in condition to understand the nature of ■the testamentary act, and appreciate its effects, that he should know what property he has to dispose of, the claims that are upon him, and their relative importance, and should desire that his property should be disposed of in a certain manner.”
Id. J152.
Another writer thus summarises the doctrine of the English Ecclesiastical Courts: “ The object is not so much to settle the question of soundness, or unsoundness in general, as it is in reference to the particular act. The principle is, that a person may be capable of testamentary acts, while technically and really unsound, and incapable of doing other acts requiring much reflection and deliberation, * * accordingly the testamentary capacity is to be determined, in great measure, by the nature of the act itself. If it.be agreeable to instructions, or declarations previously expressed, when unquestionably sound in mind, if it be consonant to the general tenor of his affections ; if it be consistent and co*1067■herent, one part with another; and if it have been obtained by the exercise of no improper influence, it will be established, even though the medical' evidence may throw strong doubts on the capacity of the testator.”
Ray, Med. Jur. of Insanity, g 355, citing, 1 Hagg. 146, 577, 502 ; 3 Hagg. 790; 2 Hagg. 142-84 ; 1 Lee, 130 ; 2 Lee, 229.
The doctrines thus expounded by judges and jurists command our unqualified approbation. The fact that a man is subject to disease of the brain is, per se, no better reason for depriving him of testamentary power than would be his having a disease of the liver. On the contrary, as we have seen, the liability to infirmity which is the inheritance of man, and the consequent need of care and attention, are amongst the most powerful reasons for testamentary freedom. The real question is, whether the brain or other physical organ, whatever it may be, which is the medium through which the action of the mind is manifested, is so diseased or impaired as to make it an untrustworthy vehicle for the conveyance of- the true wish or will of the testator, unbiased by any delusion which may be the result of such disease. The law fixes the time for the application of this test, at the moment when the will is made, and expressly recognizes the capacity of persons, subject at times even ■to complete dementia, to make a will in lucid intervals. When the will is established to have been made by the testator himself, unaided by others, and when its provisions and expressions are sage and judicious, containing nothing “sounding to folly,” these facts establish a presumption, even in the case of persons habitually insane, that it was made during the existence of a lucid interval, and impose upon those who attack the will the burden of proving insanity at the moment when it was made.
Coin-Delisle, Don. et Test, pp. 81, 82.
3 Toullier, p. 45.
3 D’Aguesseau, pp. 367-8.
Swinburne, Test, and Wills, Part II, ji 3.
1 Phillimore, 90.
Scruby vs. Pinch, 1 Adams, 74.
McAdam vs. Walker, 1 Dow. 178.
It is here fully established that Bowditch wrote his own will, without assistance from others, except in wisely asking beforehand the advice of his lawyer as to the necessary form. The only persons who testify as to his appearance and demeanor at and about the time of its execution, declare that they were thoroughly rational, composed and intelligent. The will is well expressed, and exhibits his consciousness of his right to dispose of his property in the mode adopted, by declaring that he had never been married, and had no children. The disposition in favor of *1068bis sister is conformable to the state of bis affections, as exhibited in a long series of bis letters,'extending over several years prior to bis death, which fully establish that he loved her above all his other relatives, and more than any one else in the world ; and it, moreover, carries out an intention formed, expressed and persisted in, without variation, for many months prior to its execution. After a careful review of the evidence, we find nothing to shake our conviction of the validity of this will.
The evidence does establish that, prior to the will, Bowditch had been subject to occasional attacks of acute mania, which had twice necessitated his confinement in insane retreats for a short period. These attacks were not unconnected with excessive use of liquor, but they were doubtless complicated with, and aggravated by, cerebral disease. He was also exceedingly eccentric in his actions, and was certainly subject to a distinct monomania in his habit of gathering up trash, and even garbage from the streets, regarding it as having value, and storing it in his room. These symptoms indicated the existence of cerebral disease, which continued to increase, and doubtless culminated, some months after the making of his will, in continuous dementia. His letters, however, and the testimony taken as a whole, satisfy us that up to, and for sometime after, the execution of the will, Bowditch was, at nearly all times, possessed of every faculty necessary to the making of a will; that he knew the nature and value of his property, and could at any time have made a correct inventory of it, as, on one occasion, he actually did ; that he thoroughly understood his right to dispose of it; that he was, at all times, aware of the existence of his several relatives, of their claims upon his bounty, and was capable of an intelligent appreciation of their conduct towards him ; and that his final testamentary disposition was but the carrying out of a deliberate, rational, and persistent purpose, formed many months before the will.
Regarding insanity as a physical disease, we should naturally yield great respect to the opinions of medical experts upon the subject; but the evidence of the distinguished physicians who have testified in regard to Bowditchis insanity, is robbed of all value, on account of its generality, and the failure to direct their attention to the particular kind and degree of mental impairment which destroy the will-making power.
We venture to say that not one of them could read Bowditch’s will, and his numerous letters written prior to, contemporaneously with, and subsequent to its date, without admitting that his disease, had not deprived him of the degree of intellectual capacity which we have indicated as sufficient to sustain a will. The human mind is the mystery of mysteries, and the shadowy confines, which separate the sanity of insane men from the insanity of sane men, are peopled with infinite perplexities. Swedenborg, Pascal, Luther, Ben Jonson, Goethe, Brougham, Napoleon *1069Bonaparte, and many other eminent men, were the subjects of delusions or eccentricities, difficult -to reconcile with perfect intellectual health. On the other hand, the books are full of cases of persons undoubtedly insane in some respects, who, at some times, and in regard to many subjects, manifest the most wholesome sanity.
The presumptions of the law are in favor of capacity. These must be rebutted by conclusive proofs. Doubts must be resolved in favor of the will. In the case at bar, the evidence satisfies us that the testator was of sound mind, within the meaning of the law, and with reference to the testamentary act, and that his will should be sustained.
Rehearing refused.