Opinion of the Court, per BROWN, J. ascertaining his testamentary capacity. Mr. Fanning and Dr. Downes testified before the surrogate that they regarded him insane at the time. Chauncey Shaffer gave it as his opinion that he was of sound mind, while Dr. Vanderpoel saw nothing indicating mental derangement, and adds, "his opportunities of learning much about Hopper were very few, very small, very limited"-had little or no conversation with him because he only answered in monosyllables. This is a brief summary of what occurred and the opinions of those present when the proposed will was executed. Their significance upon the question of capacity will be more apparent when we see what was the character and habits of Charles Hopper, and the particular delusion under which it was thought he was laboring for some years before his death. Charles Hopper was a butcher by trade, in which it is said he had made a fortune of some $100,000. He had withdrawn from his business for some years before the making of the proposed will, and was living without business or employment of any kind. He had lost his only child, a daughter, some time before the year 1857, and up to that time lived in harmony with his wife, Hester Hopper, and his other relatives. He appears, from the evidence, to have been a man of violent, vindictive and suspicious temper, easily excited and irritated. He withal became very intemperate, addicted habitually to the excessive use of intoxicating liquors. He had no sympathies with any of his kind; had no religious sentiments, and no respect for those who had. His household consisted of a drunken woman, Mary Russell, with the aid of a male servant occasionally to look after him. Dr. Vanderpoel describes him as the most God-forsaken man he ever saw. A controversy arose between himself and his wife, which terminated in a decree for a limited divorce at her suit, with a considerable allowance for her support and maintenance during the separation. It was during the pendency of this action that he became acquainted with Chauncey Shaffer, whom he retained as his counsel therein. He then began to exhibit decided symptoms of the delusion or monomania which is thought to have obscured and perverted his Opinion of the Court, per BROWN, J. intellect up to the time of his death. This consisted in the belief, openly and constantly asserted, that his wife had been guilty of conjugal infidelity with numerous clergymen of respectable character in the city, going so far at times as to name the place of assignation where the intercourse occurred. He also entertained and asserted the belief that his wife and other relatives had entered into a conspiracy to effect his death, in order to appropriate his property to their use. Sometimes he thought his death was to be effected by chloroform, and by throwing him into the sea while on a fishing party. At other times he asserted they were about to imprison him in a lunatic asylum, and actually asserted at one time the carriage was at his door to remove him to the asylum, and asked the servant to keep a look-out for the carriage. All this was the creation of his own disordered mind. The most intense hatred to his wife and other relatives was the consequence of this delusion, accompanied with repeated declarations that they should not inherit or succeed to his property. A remarkable instance of the predominance of this delusion occurred near the close of his life, and about the time the proposed will was executed. On the 19th of October, 1861, twelve days before his death, and nine days before the date of the instrument, he was found, by the man employed to watch him, attracted by his cries and moans, lying across the stove, in which fire was burning, and upon which he had apparently fallen, and from which he had not strength to remove himself. He was rescued from the stove, placed upon his bed, and found to be severely and extensively burned upon the body. From this injury he never rallied or recovered. He immediately conceived the idea that his nephew, John R. Hopper, who had been his agent some time before, had attempted to murder him, and had thrown him upon the burning stove to that end. This accusation he repeated and persisted in, so that the proponents were placed in the position of accepting this unequivocal manifestation of mental derangement or to attempt to prove the truth of it by evidence before the surrogate. This effort was made, and entirely failed. The testimony of Charles Opinion of the Court, per BROWN, J. Groun, who slept in the room with Charles Hopper (the doors being fastened), and that of John R. Hopper, showed that the charge was entirely without foundation in fact, and proceeded alone from Charles Hopper's disordered imagination. The idea that a person would attempt to commit murder in that way was too incredible for human belief. The will proposed makes small provision for his wife, upon condition that she releases her right of dower in his real property, and then devises a house and lot in the 10th avenue, New York, to John R. Hopper and his wife. It also makes some insignificant bequests to some of his relatives. The bulk of the estate is given to his two executors, Fanning and Shaffer, with the power of management and sale and conversion into money, when the proceeds are to be divided between the two charitable societies named, for the uses thereof. If a careful examination of the evidence taken before the surrogate results in showing that Charles Hopper, upon some subjects, and indeed generally, had mind and memory and sense sufficient to know and comprehend ordinary transactions, still it will also result that upon the subject of his wife and his other relatives, those who would naturally have been the objects of his care and bounty, and who would have succeeded to his estate, he was a maniac, given to the grossest insane delusions. The instrument proposed cannot be regarded as his will, because upon such a subject he was incapable of expressing or forming an intelligent will. It is the result, not of a clear, unclouded intellect, having an intelligent comprehension of the relation of the things with which it proposes to deal, but the result of a delusion which controls the judgment and misleads the understanding in relation to the subjects upon which it is acting. A monomaniac may make a valid will, when its provisions have no connection with the particular delusion, and there is no reason to think they are influenced by it. But when, as in this case, the delusion relates to the persons who would, in the natural and usual course of things, become the objects of the maker's care, solicitude and bounty, and especially upon whom the law would cast the inheritance of his property, the Opinion of the Court, per BROWN, J. instrument must be regarded as invalid to pass the estate, because it does not express the will of a testator of sound disposing mind. There is a great deal of the evidence to which I have not alluded, and to which, on account of its volume, it is almost impossible to allude, with profit. There is evidence upon both sides, of the opinions of witnesses, many of them medical men, some in affirmation of Hopper's sanity, and some declaring his insanity. I do not rely much upon this kind of evidence, when the opinions are unaccompanied by the facts upon which they are founded. Experience shows that even medical men and experts are quite as apt to get astray in their opinions of the sanity of individuals as others. I have, therefore, in forming my judgment in the present case, been influenced by the circumstances to which I have referred, as exhibiting insanity and delusion, rather than relied upon the opinion of witnesses, whatever may have been their position or experience. I am of opinion that the decree of the surrogate and the Supreme Court, rejecting the will, should be affirmed. All the judges concurring, except WRIGHT, J., who was absent, Judgment affirmed. TIFFANY.-VOL. VI. 81 Statement of case. 33 642 115 109 EDWARD MCMAHON, Administrator of Thomas P. McMahon, deceased, v. THE MAYOR, &c., OF NEW YORK. The father, as administrator of his infant son deceased, may maintain an action for damages occasioned by causing the death of such infant by the wrongful act, neglect and default of the defendant. To entitle the plaintiff to recover under the statute, it is not indispensable that the deceased should leave him surviving, "a widow and next of kin." APPEAL from judgment of New York Common Pleas. The action was by the plaintiff, as administrator of his son, Thomas P., to recover damages occasioned by the death of the latter, which, it was alleged, was caused by the wrongful act, neglect and default of the defendants. The action was tried in the New York Common Pleas, in November, 1864, and resulted in a verdict for the plaintiff. On the trial, exceptions were taken by the defendants to the refusal of a motion for a nonsuit, on the ground that no negligence on the part of the defendants had been shown; and also to a refusal to charge two legal propositions, as requested. There was no complaint as to the charge given. The general facts were these: In March, 1864, Thomas P. McMahon, the deceased, a bright, intelligent and steady boy, about eleven years old, lived with the plaintiff, his father, at No. 83 Henry street, in the city of New York, which was a tenement-house. The father's family consisted of the mother of the boy and several younger children; and they occupied rooms in the third story (rear portion) of the house. There was a stoop at the entrance of the house, with stone steps leading down to the sidewalk, and the sidewalk was some six or seven feet wide between the lower step of the stoop and the curb-stone. Directly opposite the entrance to the house there was a deep well, some five or six feet wide at its mouth, and which extended several feet under the sidewalk. This well, many years since, had been in use. About eight years previously to the accident, the well had been covered over with boards or planks, and a part of the gutter, curb-stone and sidewalk laid over it. On Friday afternoon, the 4th |