dered, although they may have lucid intervals, or periods when their mental unsoundness is scarcely discoverable.†

Lunacy is synonymous with insanity, and refers to that mental unsoundness which has been acquired, and is not congenital. Thus a lunatic is defined by Blackstone as a person who hath had understanding, but by disease, grief or any other cause, has become non compos mentis. That is, a mind so unsound as to be incapable of managing himself or his affairs.‡

"Insanity is the prolonged departure, without any adequate cause, from the states of feeling and modes of thinking usual to the individual in health. The term insanity is sometimes used with so broad a meaning as to include all forms of unsoundness of mind, even idiocy. A more limited meaning excludes idiocy and the forms of imbecility, even though they may result from insanity." (Page on Wills, Sec. 103, citing Bouvier's Law Dict. "Insanity;" Lindsay v. Craft, 3 Curt. 678.)

When it appears that the person is habitually insane his disability is presumed to continue, and the burden of proving a lucid interval must be assumed by him who asserts it. And it must be established by clear and satisfactory proof. While to determine whether the

†Lunacy is the common legal designation of insanity or the state of being non compos mentis."-Brown.

‡A person whose mind is thus habitually disordered cannot while the disorder continues make a valid will. But a will made

by such a person, during a lucid interval, will be held valid. In re Hoopes' Estate, 174 Pa. St. 373; In re Fenton's Will, 97 Ia. 192.

particular will was executed during a lucid interval is a question of fact to be determined from all the evidence.

Bouvier defines a lucid interval as "a period in which an insane person is so far free from his disease that the ordinary legal consequences of insanity do not apply to acts done therein." (Law Dict. "Insanity.") While the older theory of a lucid interval was that the mind of the person afflicted had been temporarily restored to perfect sanity.*

The standard of capacity required during the lucid interval is that required of persons habitually sane. That is, during the lucid interval, the testator must be of sufficient mind and memory to know the nature and extent of his property, the proper objects of his bounty, and the nature of the act he is about to perform.†

The fact that the will is just and reasonable or in accordance with intentions expressed by the testator before he became insane, or that the testator subsequently gives it intelligent recognition, is evidence tending to show a lucid interval. In determining whether lunacy exists care is to be taken to distinguish physical weakness, bodily infirmities, mere weakness of mind, nervousness or reserve, which does not incapacitate, from that mental derangement of the mind which does incapacitate.

The fact that the testator commits suicide soon after the making of his will is not conclusive of lunacy, though

*Attorney General v. Parnther, 3 Brown Ch. 441; Page on Wills, Sec. 109.

†Davis' Will, 91 Hun 209; Weirs' Will, 9 Dana (Ky.) 434.

it may tend to prove it. The test of lunacy is the presence of insane delusions, which delusions, as distinguished from those designated monomania, have become the permanent and settled condition of the mind.‡

An insane delusion is said to be "a permanent and most usual symptom of insanity." (Mill's Appeal, 44 Conn. 484.) The elements characteristic of an insane delusion are: 1. A mistake of facts, whether of occurrences, of conditions, of moral duties or the consequences of the natural laws and the like;* 2, such mistake of facts must not be based upon evidence or removable by evidence. That is, if the error or mistaken conclusion is based upon evidence, although inadequate or insufficient, then it is not an insane delusion, since the sanest of persons are liable to make wrong or unjust conclusions.t

"An insane delusion is the diseased condition of the mind in which persons believe things to exist which exist only, or in the degree they are conceived of only, in their own imaginations, with a persuasion so firm and fixed that neither evidence nor argument can convince them to the contrary."Bouvier's Law Dict., "Delusion." Middleditch v. Williams, 45 N. J. Eq. 726; s. c. 4 L. R. A. 738; Robinson v. Adams, 62 Me. 401. "A person persistently believing supposed facts, which have no real existence, against all evidence and probability, and conducting himself upon an assumption of their existence, is, so far as such facts are concerned, under an insane delusion."-Haines v. Hayden, 95 Mich. 332.

*Sherley v. Sherley, 81 Ky. 240; Valentine v. Proudfoot, 62 Wis. 216; Joslyn v. Sedam, 2 Cinn. L. B. (Ohio) 147. †Petefish v. Becker, 176 Ill. 448; Potter v. Jones, 20 Oreg. 239.

Sec. 949.

SAME

SUBJECT

SPECIAL

FORMS OF TEMPORARY INSANITY.-To be

distinguished from the fixed mental derangement which we have designated lunacy, are the following: 1. Delirium; 2. Drunkenness; 3. Dementia.

1. Delirium.

Wills made while in that mental state known as "delirium," are invalid, but if made during a lucid interval, will be sustained. That is, delirium is regarded as a species of temporary insanity and subject to the same rules. Except that delirium being usually of a temporary nature, is not presumed to continue, as in the case of lunacy. So that the will of a person suffering from delirium would not be presumed invalid and it would have to be shown that it was made during an insane interval to invalidate.*

2. Drunkenness. The mere habit of getting intoxicated, does not incapacitate one from making a will, unless as the result of such habitual intoxication, permanent derangement of mind has resulted. Otherwise, the will of an habitual dru¬kard made when sober, is held valid.†

*Johnson's Will, 27 N. Y. Sup. 649; Williams v. Williams, 90 Ky. 28; Von de Veld v. Judy, 143 Mo. 348; Miller v. Oestrich, 157 Pa. St. 264.

†Bannister v. Jackson, 45 N. J. Eq. 593; Slinghoff v. Brunner, 174 Ill. 561; Peck v. Carey, 27 N. Y. 9; s. c. 84 Am. Dec. 220.

"As in other cases the question to be determined is solely that of the capacity of the testator at the time of making his will. The fact that he was habitually intoxicated or under the influence of drugs does not render his will invalid, if he

In Pierce v. Pierce (38 Mich. 412), it is held that mere intoxication at the time will not incapacitate the testator, unless it is sufficient to deprive him of the power to realize the nature of his act.

The same rule as to capacity and incapacity applies to persons accustomed to the use of drugs, as opium, morphine and the like.‡

The burden of proving incapacity from delirium or drunkenness not amounting to permanent derangement, rests upon him who alleges it, as there is no presumption of continued incapacity.

It is

3. Dementia. By dementia, is meant that condition which results from the mere weakening or decaying of the mind. Complete dementia may closely resemble idiocy, though resulting from different causes. sometimes spoken of as imbecility. When it is caused by old age it is called "senile dementia."* It is distinguishable from mania and delirium by the fact that in those cases the mind acts quickly, hurriedly and intensely, though erratically, while in this case its action is characterized by slowness or weakness.

Mere weakness of mind and loss of memory, or mere old age, does not constitute dementia, but to incapacitate

had the requisite understanding at the time that he made it.” -Page on Wills, Sec. 112, citing Wilson's Estate, 117 Cal. 262; Camp v. Shaw, 52 Ill. App. 241; Pierce v. Pierce, 38 Mich. 412, and others.

Bush v. Lisle, 89 Ky. 393.

*Schouler on Wills, Sec. 131; Redf. 94; Page on Wills, Sec. 102.