son that she did so was because she thought that when the daughter was of age some old fool might come after her for her money, and she wanted to protect her against such persons; and it also appears that she was present when the spirits gave the testator such evidence of their presence as he regarded conclusive, by printing on a pin on her neck, in brilliant letters, the pet name of his wife. These things naturally breed suspicions and create fears. They show that it is possible that every message the testator received, purporting to come from the spirit of his dead wife, came, not from the dead, but from the living, and that everything that was done to dispel the testator's doubts, and to induce him to believe in the reality of the spiritual manifestations which he witnessed, was, from beginning to end, a prearranged scheme of deception and fraud. But there is no proof in the case which will support a judgment that such was the fact. There is enough to raise a strong suspicion, but not enough to produce conviction. Undue influence, like fraud, cannot, in a case where no relation of trust exists, be presumed, but must be proved. I strongly suspect that the testator was duped. It may also be true that he was unduly influenced. I believe that the examination of Mrs. Williams, or the medium, as a witness, would, in all probability, have made many things which now seem dark and obscure, plain and clear. The question, however, whether or not the paper in question is the will of the testator, must be decided by the evidence before the court. Taking that as the sole guide to the judgment to be pronounced, I think it is the duty of the court to affirm the decree made below.

IN RE MAC PHERSON'S WILL.

4 N. Y. Supp. 181. 1889.

The will of Sara J. MacPherson, deceased, was offered for probate by John MacPherson father of the executrix therein named, who was an infant. Elizabeth Hammond contested it on the ground of want of testamentary capacity. The letter referred to in the opinion as having been left at the house of Judge Angell, consisted of disconnected and irrelevant expressions, wholly without meaning.

RANSOM, S. A perusal of the testimony taken in this case must lead any mind to the conclusion that the testatrix, for a considerable period before her death, was an excitable, sickly woman, who, on slight provocation, and often with no apparent cause, flew into fits of passion, and displayed many symptoms of a diseased mind. Conversation upon topics connected with certain of her relatives invariably excited her to some outburst. No person in the enjoyment of her senses would have composed the letter which appears to have been left at the house of Judge Angell by the deceased. Nevertheless, the unanimous testimony of the witnesses (with, possibly, the single exception of Mrs. Angell) is to the effect that, while these manifestations of an unhealthy mind were chronic from the date of her first illness, she was sometimes, for continued periods of time, in the possession of her faculties. In the light of these facts, the law as laid down in the case of Gombault v. Public Administrator, 4 Bradf. Sur. 226, might be taken as the text upon which to write a decision of this cause, viz: "A will made in a lucid interval may be valid, but the facts establishing intelligent action must be shown. The nature and character of the instrument, and of its dispositions, have great influence, and it is important to ascertain whether the contents of the will harmonize with the state of the decedent's affections and intentions otherwise expressed." In the case at bar the subscribing witnesses prove the due execution of the will, and that at the time the testatrix had mental capacity to make a will. One of the subscribing witnesses was a law clerk, and presumably familiar with the legal requisites. The will was drawn by Mr. Rudd, after an interview with testatrix, who called at his office for the purpose of giving instructions therefor. Thereafter he received a note from testatrix, containing substantially similar directions, and the will was drawn accordingly, and sent to her by a messenger, who superintended its execution at the house of decedent. At this interview with M. Rudd he testifies that she conversed rationally upon the subjects introduced. That the will is in accord with her expressed intentions appears by the testimony of her brother, as well as by the evidence of Mr. Rudd. In the case of Chambers v. Queen's Proctor, 7 Eng. Ecc. R. 164, cited in Gombault v. Public Administrator, supra,

the decedent died by his own hand the day after he executed the will. There had been indications of insanity immediately before and after its execution. The court said: "If done during a lucid interval, the act will be valid, notwithstanding previous and subsequent insanity," and the will was upheld mainly on the ground of the reasonable dispositions contained in the instrument, the absence of proof of delusion at the time of the factum, and the rational manner in which the act was performed. Every incident specified in that case is supplied here for the purpose of supporting the will, and I am of opinion. that the will should be admitted to probate.

WHITE v. DRIVER.

1 Phillim. 84. 1809.

Elizabeth Manning died on the 26th of January, 1805, at the house of Mr. Driver, at Chadwell, in Essex; the only relations who survived her were two sisters and a nephew and niece, the children of a deceased brother; her will bore date the day immediately preceding her death; her property was bequeathed in thirds-one-third to the nephew, another to the niece, and the remaining third to their mother, the widow of her brother, who since his death had intermarried with Mr. Driver. The will purported to be signed and executed in the presence of three witnesses.

The two sisters impeached the validity of this instrument on the ground of the insanity of the testatrix.

Many witnesses were examined who deposed to the childish and extravagant conduct of the deceased at several periods of her life, while others testified to her apparently sane and rational condition for a few days preceding her death.

Judgment.

Sir John Nicholl (after recapitulating the evidence):

The evidence in this case sufficiently establishes that the deceased had been at times subject to insanity for several years preceding her death, and even down to the 21st of January,

1805, only four days prior to the execution of the will in question, but it does not appear that the disorder was uniform, or always attacked her with an equal degree of violence. She was at large the greater part of her life, and had the management and dominion of herself and her actions. She seems to have had violent accessions of the disorder in the years 1793 and 1794, in 1801, and again in 1804. The evidence, however, does not preclude the proof of lucid intervals, although it raises a strong presumption against sanity; for I agree with the counsel for the next of kin that, wherever previous insanity is proved, the burthen of proof is shifted, and it lies on those who set up the will to adduce satisfactory proof of sanity at the time the act was done.

HIX v. WHITTEMORE.

4 Met. 545. 1842.

Writ of Error to reverse a judgment recovered by the defendant in error against the plaintiff in error, at the December term, 1837, of the Court of Common Pleas. The original writ against the plaintiff in error was served on the 20th of November, 1837, by leaving a summons at her last and usual place of abode in Athol. The error assigned was, that at the time of the service of the said original writ, and at the time of the rendition of said judgment, the plaintiff in error was insane. Issue to the contrary.

At the trial the insanity of the plaintiff in error, was in the spring of 1837, either resulting from or connected with a violent disease, was both proved and admitted. Evidence was offered by the defendant in error tending to prove that she (the plaintiff in error) recovered her reason during the following summer, and continued sane till she was carried to the house of correction in Worcester, on the 10th of November, 1837; and evidence was offered by the plaintiff in error, tending to prove that she continued insane during that period.

The jury were instructed "that the insanity of the plaintiff

in error, in the spring of 1837, being proved and admitted, the burden of proof was on the defendant in error to show that she had so perfectly recovered her mind as to be the proper subject of a suit at the time of the service of the original writ upon her; and that if the jury were satisfied that she had recovered her mind during the summer or autumn of 1837, the burden of proof was then shifted upon her to show the insanity at the time of the service of the writ and the rendition of the judgment in the original action."

The jury returned a verdict for the plaintiff in error, and the defendant in error alleged exceptions to the said instructions.

DEWEY, J. Every man being presumed to be sane, till the contrary is shown, the burden of proof certainly rests, in the first instance, on the party alleging the insanity. How far this burden is changed by the mere fact of proof of insanity at a particular period is the precise point of the present inquiry.

The general expressions in some of the books that treat of the subject are certainly broad enough to warrant the instructions given in the present case. See 3 Stark, Ev. 1709; Greenleaf on Ev., sec. 42; Mathews on Presump. Ev. (Amer. ed.) 20, 21. But a careful analysis of the principles upon which presumptions are allowed to have force and effect, will show that the proof of the insanity of an individual, at a particular period, does not necessarily authorize the inference of his insanity at a remote subsequent period, or even several months later.

The force of presumptions arises from our observation and experience of the mutual connection between the facts shown to exist and those sought to be established by inference from those facts. Now neither observation nor experience shows us that persons who are insane from the effect of some violent disease, do not usually recover the right use of their mental faculties. Such cases are not unusual, and the return of a sound mind may be anticipated from the subsiding or removal of the disease which has prostrated their minds. It is not, therefore, to be stated as an unqualified maxim of the law, "once insane, presumed to be always insane"; but reference must be had to the peculiar circumstances connected with the insanity of an individual, in deciding upon its effect upon the burden of proof,