3. The loss of memory is one of the earliest and surest indications of the approach of mental infirmity. This approaches with very unequal steps in different persons. While in some it is scarcely perceptible, even at fourscore, in others it becomes a marked and serious infirmity, long before they reach the ordinary period of human life.

4. Casual observers, those but slightly acquainted with the person, are liable to very great misapprehension in regard to the mental capacity of aged persons. To a correct estimate upon this subject, it seems to be requisite that one should possess not only general skill and experience upon the question, but that he should either have had long and familiar acquaintance with the particular person, or at least an ample opportunity to observe the precise state of the mental powers, or that he should learn these facts accurately from others.

5. The rule for testing the mental capacity of a person to do an act requiring mental comprehension and disposing judgment, given by Dr. Taylor,' is as reliable as any one, perhaps. "If a medical man be present when the will is made," says this learned writer, "he may easily satisfy himself of the state of mind of the testator, by requiring him to repeat from memory the mode in which he has disposed of the bulk of his property. Medical men have sometimes placed themselves in a serious position by becoming witnesses to wills under these circumstances, without first assuring themselves of the actual mental condition of the testator. It would always be a good ground of justification, if, at the request of the witness, the testator had been made to repeat substantially the leading provisions of his will from memory. If a dying or sick person [or any other one] cannot do this without prompting or suggestion, there is reason to believe that he, has not a sane and disposing mind."

1 Med. Jur. 658, ed. 1861. See also Hathorn vs. King, 8 Mass. 371, where it was held, that being able to recall the particulars of the directions given the scrivener is evidence of testamentary capacity: Marks vs. Bryant, 4 Hen. & Munf. 91.

We apprehend that what is here said in regard to the compromise of profes

6. Extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the court. (Kinleside vs. Harrison, 2 Phillim. 449.) But no just inference could be made upon

sional character, by becoming the witness to a will, where the testator is not in a proper condition to execute it, will be somewhat unintelligible to the American mind. The impression in England is, both in the legal and medical profession, that one is bound to give directions, on such occasions, in regard to what the testator is competent to do, and that the medical attendant is responsible that he do not countenance the act of attempting to execute a will after the patient is incompetent to comprehend its import. That by consenting to become a witness of the act he virtually certifies that the testator is of sound disposing mind and memory. That if such proves not to have been the fact, the character of the medical witness is seriously compromised, inasmuch as he is subjected to one or other of the alternatives resulting from the dilemma in which he is thus placed, either that he was incompetent to detect such incapacity, or else that, knowing of its existence, he voluntarily connived at the creation of an instrument of great importance and solemnity, while the supposed actor was in a state of mental unsoundness which incapacitated him for its valid execution. Under such circumstances, the connivance may, with some show of reason, be regarded as implicating the medical witness in a virtual fraud upon the legal disposition of the property which would otherwise follow, since the attempt to execute a will at such a time is getting up the shadow of a legal instrument, the effect of which will be, if successfully carried through, to defeat legal rights which have already practically taken effect and become vested, when the simulated agent no longer possesses the capacity for voluntary action. It has always seemed to us there was great justice and propriety in the English view of the subject. We think any gentleman, whether professional or not, would feel delicacy and hesitation in regard to becoming a witness to such a transaction. But with us the public ́opinion, which is the sovereign arbiter of duty, presumes sometimes to override the dogmas of written law. It is thus, no doubt, that it has come to be understood here, by some at least, that the witnesses to a will are not to be regarded as having expressed any opinion in regard to the sanity of the testator. It seems to be supposed that they are only witnesses to the act of signing. But when it is considered that the witnesses to a will must certify to the capacity of the testator, as well as to the act of execution, the transaction begins to assume a somewhat different aspect. One who puts his name as a witness to the execution of a will, while he was conscious the testator was not in the possession of his mental faculties, places himself very much in the same attitude as if he had subscribed as witness to a will which he knew to be a forgery, which every honorable man could only regard as becoming accessory to the crime by which the will was fabricated; so that it is not improbable that the want of proper appreciation of the discredit resulting from the act of becoming a witness to the execution of a

the question of capacity, from age merely, short of some extreme period; but, as is well said, "if a man in his old age becomes a very child again in his understanding, and is become so forgetful

will by one confessedly incompetent to the proper understanding of the instrument, may, and probably does, result chiefly, with us, from the general misapprehension of the law upon the subject, rather than from any settled disposition to disregard its dictates if correctly understood. We are certainly gratified to be able to give so charitable an explanation of what has always seemed to us a great, if not an inexplicable, inconsistency or obtuseness in the public sentiment upon this subject among the American people, in some sections of the country at least. We should surely be glad to do all in our power to correct what we regard as a discredit to the public sentiment, whether it be attributable to ignorance or to insensibility. We mean, for a professional man, who is supposed to understand the subject fully and to be in a position in life where he may act independently, to nevertheless consent to become a witness to a will executed by one wholly incapable of comprehending its import. The language of Lord CAMDEN, in his most able and elaborate judgment in the celebrated case of Hindson vs. Kersey, 4 Burn's Eccl. Law 85, 88, is of great significance upon this point: "And that the statute had a main view to the quality of the witnesses will appear from this consideration, namely that a will is the only instrument in it (the Statute of Frauds) required to be attested by subscribing witnesses at the time of execution. It was enough for leases and all other conveyances to be in writing: these were all transactions of health, and protected by valuable considerations and antecedent treaties. The power of a court of equity was fully sufficient to meet with every fraud that could be practised in these cases, after the contract was reduced to writing. But a will was a voluntary disposition, executed suddenly in the last sickness, oftentimes almost in the article of death. And the only question that can be asked in this case is, Was the testator in his senses when he made it? And consequently, the time of execution is the critical minute that requires guard and protection. Here you see the reason why witnesses are called in so emphatically. What fraud are they to prevent? Even that fraud so commonly practised upon dying men, whose hands have survived their heads; who have still strength enough to write a name or make a mark, though the capacity of disposing is dead. What is the condition of such an object, in the power of a few who are suffered to attend him, wheedled or teased into submission for the sake of a little ease? Put to the laborious task of recollecting the full estate of all his affairs, and to weigh the just merits and demerits of those who belong to him, by remembering all and forgetting none. Who then shall secure the testator in this important moment from imposition? Who shall protect the heir at law, and give the world a satisfactory evidence that he was sane? The statute says, three credible witnesses. What is their employment? I say to inspect and judge of the testator's sanity before they attest. If he is not capable, the witnesses ought to remonstrate and refuse their attestation. In all

...

that he knows not his own name, he is then no more fit to make his testament than a natural fool, or a child, or a lunatic."

7. The American cases take a similar view of the effect of old age upon testamentary capacity. One eighty-six years old, and afflicted with disease, was held competent to execute a will. So also one of eighty years of age, with energies greatly impaired.3 And in a case seriously contested, where the testatrix was ninety years old, it being shown that the deceased was of sound mind, that the will was in conformity to one executed six years before, when there was no question of her mental capacity, and also with her repeatedly declared intentions, both before and after the date of the last will; and that the provisions of the instrument were reasonable, and were carefully read and explained to the testatrix at the time she executed the will; and it appearing that no concealment, deception, or influence had been used to procure the will, it was established. The surrogate, in giving his opinion, which was very minutely and carefully considered, thus concludes:

8. "Great age alone does not constitute testamentary disquali fication; but, on the contrary, it calls for protection and aid to further its wishes, when a mind capable of acting rationally, and a memory sufficient in essentials, are shown to have existed, and the last will is in consonance with definite and long-settled inten

other cases the witnesses are passive, but here they are active, and in truth the principal parties to the transaction; the testator is intrusted to their care. Sanity is the great fact the witness is to speak to when he comes to prove the attestation, and that is the true reason why a will can never be proved as an exhibit, viva voce, in chancery, though a deed may; for there must be liberty to cross-examine to the fact of sanity." "From the same consideration, it is become the invariable practice of that court never to establish a will unless all the witnesses are examined, because the heir has a right to the proof of sanity from every one of them whom the statute has placed about the testator."

11 Wms. Exrs. 36; Griffiths vs. Robins, 3 Mad. 191; Mackenzie vs. Handasyde, 2 Hagg. 211; Potts vs. House, 6 Ga. 324.

2 Watson vs. Watson, 2 B. Monr. 74.

3 Reed's Will, Id. 79.

4 Maverick vs. Reynolds, 2 Bradf. Sur. Rep. 360.

tions, is not ureasonable in its provisions and has been executed with fairness."

9. And in another important case,' the same learned judge held that defect of memory, unless it be total or appertain to things essential, is not sufficient to establish incapacity, and that advanced age, of itself, raises no presumption against the capacity of the testator; and quotes, as the basis of his judgment, the eloquent words of Chancellor KENT, in regard to the will of a person between ninety and one hundred years of age."

1 Bleecker vs. Lynch, 1 Bradf. Sur. Rep. 458.

2 Van Alst vs. Hunter, 5 Johns. Ch. 148. The remarks of Judge BRADFORD, in Bleecker vs. Lynch, supra, in regard to the effect of old age, are worthy of repetition here: "The effect of age upon the vigor of the mind varies so much according to individual constitution, that it is difficult to form a sound general conclusion on the mere fact of advanced age. In an intellectual sense, there is nothing in the mind, abstractly speaking, tending to decay; its loss of tone and power is consequent upon the ravages of time and disease upon the body, and especially the brain, upon which the understanding is dependent for manifestation. It is said that not more than seventy-eight in one thousand die of old age; and it is scarcely possible to define the natural period of life, or its more frequent and regular limit, independent of disease and accident. Blumenbach observes, that, by an accurate examination of numerous bills of mortality, he had ascertained the remarkable fact, "that a pretty large proportion of Europeans reach their eightyfourth year." Haller gave a list of two hundred and twenty-one persons who lived from one hundred to one hundred and sixty-nine years; Easton, a list of one thousand seven hundred and twelve who attained a century and upwards. The condition of the mind, in these cases, of course varied. In Madden's six tables of the ages of the most distinguished modern philosophers, jurists, artists, and authors, and in D'Israeli's Notes on "the progress of old age in new studies," there are the names of many men whose genius shone in full splendor to the close of an advanced life. I do not mean to gauge all cases by such remarkable instances, but advert to them to show that each individual must be judged by himself. The power and brilliancy of the mind in old age is an exception, but so is longevity itself. It may be observed, in this connection, that the system frequently makes an effort at renovation in extreme old age, which is evinced in the cutting of teeth, the recovery of the original color of the hair, and of perfect vision and hearing. This is said to occur more frequently in females, and indicates tone and strength in the nervous system, great vital power, and recuperative energy. A fact of this kind occurred to the decedent, who, about the time the will was made, recovered her vision, was able to read without spectacles, and to thread the finest needle.