(dissenting). — The objection that the questions of fact involved in this case were not open to review in this Court was not well taken, notwithstanding that issues were framed and tried by a jury, yet for all the purposes of a review it is to be regarded as a trial by the Court, and as falling within § 268 of the Code. The judgment in such a case is not entered upon the answers of the jury to the questions put to them, but upon the findings of the Court, and the judgment is directed by the Court. *224Whether, therefoi’e, upon the whole case, the judgment ordered was correct, is open for consideration here.
The burden of proof in this case was with the party seeking t,o invalidate the deeds. It lay with him to show, beyond any reasonable doubt, that Park Ilaviland was insane, or so far deranged in mind as to be incapable of transacting business, when the deed dated June 14, 1858, was executed, or, if of sound mind, that the deed was procured by force, fraud, or undue influence. In this, I think, he has failed.
It is undeniable that the grantor, at times, for some years prior to the date of the deed mentioned, exhibited many striking symptoms of insanity. But this was not his condition at all times. Some of the witnesses speak of the change in his mental condition taking place as early as 1816, when he met with some pecuniary losses.
On the trial of the cause, his conduct and condition, from that early period to the time of his death, were the subject of examination, and the following facts were established: His bodily health was for most of the time good, although at a very early period he complained of his head, and continued to do so at times during the remainder of his life.
Pie avoided the society of his fellow-men, and was in the habit of hiding himself in unusual and unseemly places. He remained silent when spoken to, and turned abruptly away from those who addressed him. Pie attached undue importance to losses, and indulged in vague and unwarrantable fears of bankruptcy, and consequent want.
He talked, when alone, in a loud and boisterous manner, and mingled with his prayers impious imprecations. He was • extravagant and incoherent in his language, violent in gesticulation, and moved to great excitement by inadequate causes.
He was negligent in his dress, and, on some occasions, obscene in his language.
When excited, his face became unnaturally flushed, the veins of 1ns temples much enlarged, and his eyes assumed an unnatural wildness.
*225In enumerating what are claimed to he evidences of his insanity, we fail to find any disposition to undervalue, waste, or to destroy his property. Down to the date of the first deed, he seems to have made no improvident bargains, and to have taken ordinary care of what he possessed.
During this period he worked more or less on the farm. He mowed, cradled, stacked hay, and did the most, if not all, of the churning for the dairy. lie made notes for large amounts, some of which he procured to be discounted, received and counted the proceeds, and sent them West to his son Albert to purchase cattle for the farm.
In his son’s absence, he delivered some sheep that had been sold, and selected from a flock the particular ones the purchaser was entitled to under his contract. He consulted his physician as to his bodily diseases, stated the symptoms, correctly and with precision, inquired intelligently 'as to the effect which was claimed for the remedies prescribed, and afterward informed the Doctor that he had experienced relief. This was in 1851, about three years subsequent to the execution of the first deed ; and. the family physician, in his testimony, says of firm at that time: “I discovered nothing irrational — not the slightest aberration of mind. I think he was a sane man.”
He applied to one of his neighbors to draw the deed conveying the farm to Albert; said he was going to give his son a deed of his farm, and wanted a bond back for the maintenance of himself and wife during their lives. He afterward brought an old deed, from which the scrivener obtained the boundaries of the land to be conveyed, and designated which of the two pieces of land set out in the old deed he wished to convey. He took the deed, when drawn, to the proper officer to have it acknowledged, and gave prompt and pertinent answers to the questions put to him during the ceremony of acknowledgment.
It seems satisfactorily established, therefore, that the deed was drawn at his request, executed and acknowledged voluntarily, and apparently with a full understanding, on his part, of its contents. During the time all this business was being done his mind *226appeared to be calm ; be manifested none of the excesses of speech or manner which at times he had exhibited, and to all appearances was effectuating his own will in his own time and way.
He spoke of the deed after it was given, and explained why he had given Albert so much of his property. He alluded to the trouble that he and his wife might be to him, and remarked in that connection that he would have no more than his share.
I have not overlooked the medical testimony bearing upon the question of insanity. This testimony is quite unsatisfactory. Doctor Hoag saw him but once, in 1849, and the meeting was accidental, and not with a view to determine his condition. He had been in practice but five months, and laid no claim to skill or experience in mental diseases.
He gave no decided opinion.
Doctor Barnum saw him in 1851 or 1852, three years after the execution of the first deed; made an examination of him, with a view of testing his sanity, lasting “ a very few minutes,” and pronounced him insane. Dr. Cook saw him at the Lunatic Asylum at Utica in 1853, and he testified: “His mind was much impaired from long-continued mental disease. . . . He was incurable. The prominent symptoms were chronic mania.” But he also frankly said that, from what he saw of Park Haviland, he could not tell that his disease existed for more than two years before he saw him.
On the other hand, Doctor Horthrop, who was the family physician until 1852, and who made professional calls in 1847-8-9, testifies : “ Mrs. Haviland was sick. I called occasionally. When I saw Park he appeared rational. He inquired about the disease and mode of treatment, and took a good deal of interest. In dangerous cases, he was always present. In trivial cases he was retiring. I prescribed for him in 1851. He came to my house on horseback, and related symptoms of urinary difficulty. I was satisfied of the difficulty, and made prescriptions. He said he had difficulty of voiding water. I prescribed burdock leaves. He inquired as to the effect of the medicine. He afterward said the medicine had operated as I described . . . He said his diffi*227culty -was overcome and lie was relieved. I discovered nothing irrational, not the slightest aberration of mind. I think he was a sane man.” "Whether this was before or after the date of the deed is left in doubt; but at all events • it shows that there were times, other than when the deed was executed, when Park Iiaviland was calm, self-possessed, and, so far as any judgment could be formed from conversation and outward appearance, in the full possession of unimpaired faculties. The causes which produced the condition in which Doctor Cook found him at the asylum were doubtless then at work; but that they, at that time, had destroyed his capacity for business, is not satisfactorily established. Mental, like bodily disease, is progressive; and to determine at what particular stage of it the mind loses its balance, and becomes in law unsound, requires, at times, minute personal observation, aided by the highest human skill. Little confidence, therefore, in my judgment, should be placed on the opinions of physicians on the subject of insanity, who have„not devoted themselves to its study. And even then, at times, a diseased mind baffles the skill of the wisest.
There is probably no department of scientific investigation where observation and experience are of so much value, and where mere opinions, in cases not well defined, are so unsatisfactory. Mental disease manifests itself in multifarious forms. It may have its germ in what are supposed t^e eccentricities of character, or constitutional idiosyncrasies, which, though harmless for years, in the end may destroy the reason.
There is no infallible standard by which sanity can be judged. The extremes of mental condition are easily distinguished. The sane man is not confounded with the drivelling idiot or the raging madman. But to determine where sanity ends, and madness begins, in a ease like the one before us, is a problem of difficult solution. Little aid, therefore, is afforded by a physician who had been engaged in the practice of his profession but five months, or one who saw him but twice with a view of testing his soundness of mind, and even then but for a very brief period.
Doctor Cook’s judgment is entitled to great weight, but he saw *228him for the first time in 1853, when he had passed into a hopeless state of insanity. Wliat else he knew of him, was what he learned from th'e witnesses on the trial; and his opinion, therefore, was not founded altogether on his own personal observation. To adopt an opinion formed under such unfavorable circumstances, and on the strength of it hold, in the face of all the testimony affirming his soundness of mind, that Ilaviland was incapable of disposing of his own property, would be adopting a hazardous rule. I am therefore of the opinion that the testimony will not sustain the finding that Park ITaviland was insane on the 14th day of June, 1848, when the deed to his son Albert was executed.
It is not without its effect upon the mind, in considering the question of insanity, that no steps were taken by the Plaintiff, or other member of the family, to have Park Ilaviland declared a lunatic, and prevent him from squandeiing his property, if he were considered at the time to be of unsound mind. When the first deed was executed the Plaintiff was more than thirty years of age, and other members of the family were still older. Albert had spoken openly of his intention to get a deed, and there was nothing secret or concealed in the manner of its execution. It seems to have been known generally in the neighborhood soon after its execution, and public rumor questioned the title long before the sale under the mortgage, whereby the Defendant acquired his title. The inference is irresistib^ that the Plaintiff knew that his father had conveyed the property, and it would seem unaccountable that no steps were taken to have him declared of unsound mind, if he supposed sufficient reasons existed therefor.
Neither is there satisfactory evidence in the case that the sale •was forbidden. Some paper was handed to the referee, which he did not read at the time. It is not made a part of the case; and whatever it was, it was not made public at the time, and one of the sons of Park Ilaviland bid $3,500 on the property.
This sale was consummated by the delivery of the referee’s deed early in 1852, and the purchaser entered into possession. These facts furnish some evidence of the estimate which the family put upon his capacity to dispose of his property, and suggest *229the manifest propriety of requiring of the Plaintiff, before he can set aside the conveyances at this late clay, the most satisfactory evidence of his father’s insanity when the conveyance was made.
The learned Justice who tried the case did not find that the deed was obtained by fraud or undue influence, and it is therefore unnecessary to consider that question.
The judgment of the General Term should be affirmed; but considering the nature of the case, it should be without costs.
Reversed.
JOEL TIFFANY, State Reporter.