Gardner v. Gardner. part of the defendant, the gift discharged both the bond and mortgage. But inasmuch as the contradictory evidence left it doubtful whether the mortgagee did make the expressions imputed to him, his lordship directed an issue on that question. In the case at bar, which is an appeal from a surrogate, I am not aware of any express statute giving the chancellor power to award an issue, as is done by the revised statutes in certain cases while before the surrogate or before a circuit judge in probate cases; but the appeal is given, in the case before us, to the court of chancery, as such. 2 R. S. 506, 2d ed. And the reason why the legislature were silent, was probably, because they knew that the court of chancery has the general incidental power to award an issue in all proper cases. I have no doubt of its power in the case before us, if not expressly restrained; and I presume its jurisdiction is not, in regard to issues, narrowed any where in the revised statutes. Taking the court of chancery to hold its ordinary power in this particular, and conceding, for the sake of the argument, that Mrs. Milnor's testimony was shaken, then, I think much the better course would have been to award an issue. The case at bar seems more strikingly to call for such a direction previous to a decision by the chancellor, than that of Richards v. Syms, where the evidence was agreed to be contradictory. The Lord Chancellor would not pronounce against the gift even in such a case, till the defendant's testimony had been overruled by the verdict of a jury. In the case at bar, I have endeavored to show, that there is, at least, very great difficulty in seeing a doubt either in respect to the form and intent of the gift, or the sanity of the donor or his freedom from undue influence. Yet the court of chancery has nullified the gift, without even taking the opinion of a jury. If, as was held by Lord Hardwicke, the intent to give ought not to be negatived without an issue in Richards v. Syms, such a precaution in the case before us, even if we do not go beyond an inquiry as to what the testator said, seems to me still more proper. But when we come to doubt on the question of insanity and undue influence, such a case has always been deemed peculiarly prop Gardner v. Gardner. er for the consideration of a jury. I noticed before, that the gift was in nature of a bequest. The question is of the same character as that which frequently arises on offering a will for probate, in respect to which the legislature have made special provisions for an issue on appeal to the circuit judge. 2 R. S. 10, 505, 2d ed. It is analogous to the issue of devisavit vel non, so familarly known to the profession. Mingled, as this matter was before the auditors, with the general account, and introduced by the way of supplemental charge at an advanced stage of the hearing, (though I do not mean to deny the regularity of that course in strict practice,) it is easy to perceive that the hearing must have been greatly wanting in that fulness of preparation, and singleness of attention, and thorough examination peculiar to the trial of a feigned issue. May I be permitted to say again that, to my mind, there was an unaccountable paucity of proof to show insanity? In Kettletas v. Gardner, read in evidence from 1 Paige, 488, the master reported that Gardner was of sound mind when the report was made, though his bodily health was impaired and his habits of intemperance laid him open to frequent attacks of insanity. It is evident from the report that the fits of insanity spoken of were entirely voluntary; the man got drunk often and that was the amount of his insanity. The report was made in 1829, after he had come from the asylum the last time, a sober man, as Mrs. Milnor says; nor was there a particle of evidence, that he was even drunk after that time. The amount of the master's report is that he was liable to become insane. That he ever became so after he left the asylum he does not say and when he destroyed the bond he was, as Mrs. Milnor says, perfectly himself. She had been long acquainted with him, and could doubtless tell as a matter of fact at the time, whether he was drunk or sober. It must have been a surprise to this widow to be told that her husband who had been in the habit of getting drunk could not, for that reason, make a codicil, or add to her legacy by way of donatio causa mortis, when he was perfectly sober. I feel fully authorized to believe that there was nothing in the case different from the ordinary VOL. XXII. 63 Gardner v. Gardner. alternations of an intemperate man. That his habit had at any time resulted in delirium tremens is no where said. Even that, the worst and commonly the most imbecile state of the drunkard, is often attended with turns of sobriety sometimes for weeks. Again, I ask if there was any thing more than common drunken fits, why was it not shown? Doct. Rogers had advised that he should be confined. Why was the doctor not examined? Mrs. Gardner had raised the issue. Her own witness had pronounced the man sober at the very moment of the gift; and also declared that he came from the asylum, on an invitation to fetch him as a cured man. If she was mistaken in her estimate of his condition, she might have been met by a cloud of witnesses; the physicians at the asylum, the keeper and his agents, in addition to the family physician, and the neighbors who had noticed him since his return. If his faculties had become so impaired that he was too stupid for plain business when clear of drink, surely this must have been well known, and could have been easily proved. Yet all was rested on criticising the testimony of Mrs. Milnor and the judicial removal of the man from his office of guardian because he was intemperate. It is true that Mrs. Gardner might have called the witnesses of whom I speak ; but I do not think her counsel was warranted in doubting that her case was fully made out, and must stand, till it was more seriously impeached, than it had yet been by opposing testimony. Beck, in his treatise on medical jurisprudence, vol. 1, 376, 1st ed. advises that "the conduct of drunkards should be particularly noticed during the intervals of temperance. If spiritous liquors exercise such an inffuence as to render us doubtful concerning the state of mind at this time, we may reasonably infer that the alienation is becoming permanent." Why was not such an obvious point of view resorted to? Was it enough to talk of the madhouse? This was evidently a mere misnomer. Doct. Rush, in treating of mental diseases, calls it a sober-house, and advises that an hospital be established in every city. and town in the United States, for the exclusive reception of hard-drinkers. Diseases of the Mind, 267, ed. of 1812. Gardner v. Gardner. The ground taken by Rush is, that drunkards are mischievous. Swinburne says the drunkard is like a mad man during the time of his drunkenness; and cannot make a will when he is so excessively drunk that he is utterly deprived of the use of reason and understanding; otherwise, "if he be not clean spent, albeit his understanding be obscured and his memory troubled." 1 Swinb. 133, 4, ed. of 1803. Black. 2 Com. 497, says "he is incapable when his senses are besotted with drunkenness." Mr. Stock, in his late treatise on the law of non compotes mentis, 46, 7, gives us the result of the authorities, that "proof of drunkenness amounting to insanity will invalidate a will; but if it be shown that the testator was not under the influence of strong liquors at the time of the execution, the presumption will be in favor of the will, a presumption strengthened or impaired of course by the internal evidence of the contents." What reason, I ask, had Mrs. Gardner to suppose she did not stand within the very terms of the rule, after proving that her husband was perfectly sober when he destroyed the bond? Least of all, I think had she reason to expect the imputation of undue influence; and feel herself called upon to repel any thing of that kind. There was not one particle of evidence that she had ever urged her husband on the subject; and I must be permitted to deny, on authority, that her general influence could be received as any proof against her. In Williams v. Goude, 1 Hag. Eccl. Rep. 577, 581, 595, a like inference was sought to be made. There the husband was a tavern keeper; and, it seems, not only drank, but had become a good deal stupified under an attack of the apoplexy. In respect to the charge of undue influence, Sir John Nicholl remarks; "There was the general influence of an active, bustling, high spirited wife, over a good natured easy husband; in consequence of his attack, it was necessary she should take a still more decided lead in the management of the concerns of the house. It was necessary she should, as a kind nurse and an affectionate wife naturally would, insist on his going to bed at his regular hour; on his not indulging too freely in liquor," &c.; adverting to other acts of salutary influence. But he adds; "I can find Gardner v. Gardner. no trace of any unfair importunity, on the part of the wife to induce him to alter his will, or do any testamentary act." The general influence arising from his affection for and deference to his wife, the learned judge refuses to admit as matter of suspicion. He says, in another place: "Indeed, it would be extraordinary, if the influence of affection and of warm attachment is to take away the power of benefitting the object of that regard. The influence, to vitiate an act, must amount to force and coercion destroying free agency, it must not be the influence of affection and attachment, it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion; by importunity that could not be resisted; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear." Was there any thing of all this in Mrs. Gardner's case which it lay with her to repel. I confess myself utterly at a loss to conjecture on what the mind can fasteu itself bearing the remotest semblance of undue influence. These probate investigations were an every day matter with Sir John Nicholl, who fixes the onus on the party charging undue influence, saying he must put his finger on the act, showing how it was wrought. In the case at bar, the auditors say Gardner was exposed to undue influence. The surrogate adds he may perhaps have laboured under the terror of being sent back to the madhouse; and the chancellor says, "I must presume the mother, or some one else, had persuaded the decendent to destroy the bond." Certainly he was exposed to influence, and, so is every man on a bed of sickness, or in the hands of his nurse, even though she be his wife. Are we, therefore, to presume that it was exerted? Perhaps he was afraid of being sent back-are we therefore to presume that Mrs. Gardner shook his purpose by threats of incarceration? we proceed from exposure, into the regions of conjecture, it is difficult to conceive how a great majority of testamentary acts are to escape the imputation of undue influence. If I could presume that Mrs. Gardner, or some one else, If |