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nesses. Soon after the death of the deceased, all the executors renounced prohate; and administration, with the will annexed, was granted in December, 1821, to the residuary legatees, Thomas and Valentine Clark. In April, 1822, that administration was called in by the daughter; the residuary legatees were put on the proof of the will; it was propounded by them, and was opposed by Mrs. Dew, the daughter. The first allegation given in, on behalf of Messrs. Clark, merely propounded the paper in the form of a common condidit; pleading the factum of the execution, the death of the deceased, and the character of his hand-writing. And if the question now before the Court rested on the evidence of the factum, as proved by the witnesses on the condidit, there could be no doubt whatever respecting the validity of this will. Their evidence, as far as it went, was complete and satisfactory. The grounds, upon which the will was opposed, were not a denial of the intention of the testator; or of the execution of this paper; or any suggestion that either fraud or circumvention was practised towards him; or that any extrinsic influence had been made use of in order to induce him to make such a disposition iof , his property. Neither was it suggested that this will had not originated entirely with himself, and had not been prepared and completed by and under his own directions. It was not charged that the attesting witnesses had, in any degree, falsely represented the facts they deposed to; or that they had not given an honest and sincere opinion in respect of the state of the deceased at the time this instrument was executed. But the
ground of the opposition was this; that though it was the will of the mind of deceased, that mind was not a sane, but was an unsound, mind—"unsound," in the legal sense of the term, that is, that deceased was, to a certain extent, deranged in mind when he made this will. Now, it was the clear rule of law, that, where a case of this description was set up, the onus probandi was on the party by whom it was so advanced. And the general tendency of the plea, which had been offered on the part of the daughter, might be thus stated: that the conduct of the deceased towards his first wife, upon the birth of this daughter, had been strongly marked with derangement; that he subsequently, and ever afterwards, manifested strong indications of a complete hatred and antipathy for the daughter herself; that in respect of her, in particular, he laboured under a delusion of mind, imagining her to have been, from her birth, invested by nature with great and singular depravity; and to be an abandoned profligate, a wild and irreclaimable being; that he treated her with the utmost cruelty and violence, notwithstanding she on all occasions behaved to him with all duty, and endeavoured by every means to conciliate his affections; that she had always conducted herself as a modest, virtuous, and amiable person; but that in these prepossessions against her, and in other matters respecting her, the deceased had shown strong symptoms of insanity. Now, the admission of this plea, which necessarily went into great detail, had been opposed by the propounder of the will; and the Court on a former day had expressed an opinion, to which it still adhered, that such a case, as that suggested by this plea, would be one extremely difficult of proof; but that if proved, it might certainly be available to render the will invalid. On the part of the residuary legatees, a very long responsive plea also had been given in support of the will, setting forth the general sanity of the testator in the whole of his conduct through life: and his character, temperament, and religious opinions, as sufficiently accounting for that kind of irritation under which he had at times treated his daughter with perhaps extreme severity; that on the part of the daughter, herself, also, there had been such misconduct as had afforded the deceased some rational grounds for the testamentary dispositions he had made to her prejudice. In supply of proof of this allegation, many of the deceased's letters were exhibited; and several, likewise, of the daughter's; and these showed, it was contended, on the one hand, thatthe deceased wasa rational person, acting upon rational grounds; and, on the other, that the daughter under her own hand admitted her past misconduct, and promised future amendment. This outline of the case, on either side, would suffice to demonstrate the extreme difficulty, in which, as the Court had observed, this cause was involved. It had been truly stated by counsel in argument, that the validity of this will could not be affected, unless the Court should be morally convinced, that the deceased, when he made it, was a person of unsound mind. Eccentricity of conduct, if it were no more than eccentricity, would be of no avail to take away from a man the right which the law conferred upon him, of disposing of his property, after death, as he
chose. Severity in his general conduct to his daughter, arising from the natural infirmity of his temper, or accidental excitements, would not prove mental derangement, even though it should seem to have been excessive severity. The Court itself must be most careful not to indulge any feelings of compassion for the person who opposed the will in question, although she was an only child and prejudiced by that will, or though it might be shown even that she was the most amiable and unoffending of her sex. The Court must look only at the legal aspect of the case, without regarding the small annuity with which the deceased had cut this daughter off'; or that fact— perhaps more distressing to herfeelings as a mother—that he had left without any provision any child or children of her own, though these could, by no possibility, have offended him by any misconduct on their part. The deceased, in the exercise of his legal rights, might give the bulk of his property, if he thought fit, most undoubtedly, to public charities, or to these nephews, or to still more distant relatives, in preference to his own daughter; and any mere personal considerations, such as the Court had just adverted to, could have no legal effect whatever. This sort of proceeding might be an act of injustice, or an act of caprice; but the only question which the Court had to deal with, was— was it an act of insanity? The true point now to be decided was, whether, at the time of making this will, the deceased was a person of sound or unsound mind? To the decision of that issue it must direct and confine its attention. The first consideration'' tb' be determined was, the fixing;
what should be the characteristics and the test of an unsound mind; and the determining at what point eccentricity and caprice might be said to end, and where derangement commenced. Derangement assumed a thousand different shapes, as various as the shades of human character. It existed in every imaginable variety, from that of the frantic maniac chained to the floor, to that of the person who was apparently rational in all his acts, and in his conversations on all subjects, excepting one; which delusion on one subject, though daily present to his mind, would not be elicited, perhaps, but under special circumstances, and on particular occasions. Thus, we had all heard of persons at large in Bedlam itself, acting as servants in that public institution; and even showing the other maniacs, and describing them to casual visitors; and who, although at large and competent to do this, were yet, themselves, essentially mad on some topic or other, all the time. We had also heard of the individual who fancied himself to be the duke of Hexham; and yet acted rationally enough as the servant of his own committee in the management of his own property. It was further observable, that persons labouring under a disorder of the mind, had often a temporary power of restriction over themselves, either from the respect and awe they felt in the presence of others; or from a consciousness of the peculiar relations in which others stood to them. Extraordinary instances of this faculty had occurred, in which they had even deceived their keepers and medical attendants, notwithstanding the constant and vigilant observation of the latter, in respect
of all their actions j and yet after gaining the point for which they had so restrained themselves in the presence of those whom they knew to be most capable of detecting the real condition of their minds, those very individuals had been found to labour under the influence of undiminished insanity. Other people, who were most capable of delivering themselves with great propriety, and in the most rational manner, upon most subjects, were yet the victims of an utter delusion upon others. As far as the Court's own observation and experience went, guided and aided by those opinions and circumstances which every person must have occasionally encountered in society, and fortified also by cases which had occurred in this and in other courts of justice, or by what had been laid down on these subjects by medical and other writers; the learned judge declared his opinion to be this—where there existed delusion of mind, there existed that which was commonly termed insanity. Where persons believed things to exist, which, in fact, existed only,—or, at any rate, in the degree in which they supposed them to exist,—in their own imagination, and of the nonexistence of which neither argument nor proof could satisfy them; such persons were of unsound minds. Or, as one of the learned counsel in support of the will (Dr. Lushington) had well put it—"it was only the belief of facts which no rational person would have believed, that constituted insane delusion." QHere the learned judge entered into a luminous and elaborate examination of the character of mental delusion generally —its excess and its modifications — its exciting causes—and, in
short, of the principal diagnostics of this malady of mind. Our limits will by no means allow us to do justice to this acute and careful investigation; and we can do little more than indicate some of the authorities cited at this stage of his judgment.] In consequence of the definition and opinions which the Court had thus ventured to express upon these points, it might not be improper to refer to some authorities, medical as well as legal, on the same subject. The former had defined some characteristics by which insanity might be known. Dr. Batty, in his celebrated essay or treatise on Madness, in the first chapter, where the nature of madness is defined, after stating that it consists in "too lively or too languid a perception of things," declared "that a disordered imagination was not only an indisputable, but an essential characteristic of madness." Mr. Locke (who, though more distinguished as a philosopher than a practising physician, had yet in his earlier years, and till his health caused him to discontinue the pursuit, acted for some time in the latter capacity) had given a chapter (chapter 2), in his Essay on the Human Understanding, upon idiots and lunatics; in which he said "Madmen, having joined together some ideas very wrongly, mistake them for truth; and, by the violence of their imagination, having mistaken their fancies for realities,makerightdeductionsfrom them." Then followed the celebrated definition of the distinction between fools, or idiots, who from right premises draw false conclusions, and madmen, whose conclusions from false premises are correct. The only other medical authority the court would refer to,
was a name much distinguished in the history of those who had studied these particular disorders of the mind. He meant Dr. Francis Willis, who, in a very recent publication, had introduced some passages upon the subject of mental delusion, by no means undeserving of attention. The publication alluded to was a Treatise on Mental Derangement, which had formed the subject of the Gascoynean Lecture, delivered by him before the college of Physicians in 1822, and published by him in March, 1823. Dr. Willis seemed to have referred to almost every writer upon those matters, both ancient and modern; and besides having, himself, had very great practice in respect of this particular disorder, he had had the advantage of acquiring the most valuable information from the extensive practice and experience of his own family. The authority of Dr. Willis was precisely to the same effect. Lord Hale's notion of the matter was much the same. He, in his pleas of the Crown, had said, "there is a partial insanity of mind, and a total insanity of mind; the former is either, in respect to particular things 'quoad hoc vel illud insanire;' or in respect of particular persons. Some persons who have a competent reason in respect of some subjects are yet under a species of 'dementia' as to other matters." Mr. Erskine, in his speech in defence of Hatfield, followed the like doctrine; and lord chief justice Coke, in his 1st. Inst, had this passage ;—" Here Littleton explaineth a man of no sound memory to be 'non compos mentis.' Many times (as here it appeareth) the latin word explaineth the true sense, and calleth him not amens, demens,furioms, lunaiicus
fatuus, stulius, or the like, for non compos mentis is most sure and legall." Lib. iii. sect 405—Sir John Nicholl also adverted to the well-known case of Greenwood, and two curious instances of mental delusion which had been described by the late lord Mansfield; and he showed that in those instances, there was the same species of mental delusion on particular topics, and those only. He then went through the various facts of this case, dwelling at great length on the history of deceased, and the influence which the accidents of his existence had exercised upon his character and opinions. He established the preexistence of a powerful prepossession in the mind of deceased against his daughter, from a very early period down to the making of the will; and his declarations to friends and others, as to the commission of acts of gross misconduct on the part of his daughter, which declarations were clearly and distinctly falsified by the testimony of his own witnesses. The learned judge then adverted to the evidence with respect to the character of Mrs. Dew. He stated the depositions on both sides of the question; and shewed (from her own witnesses, and those produced ~ty-the Messrs. Clark), that her conduct had been at all times, not only irreproachable, but entitled f itathehighest praise for her modesty, humility, and her affectionate endeavours to gain the confidence and love of her father, notwithstanding the harshness and brutality of his conduct towards her. The misconduct imputed to her, c in one case, was disproved by the very witness (a single one) who was brought forward to prove it; in the other cases, the witnesses
vouched to establish the facts charged, expressly disavowed them. As for the letters of Mrs. Dew to her father, nothing in the world could be more clear than that they were written admissions of general misconduct, of which she had never been guilty; and written as much under the immediate awe of her father (the deceased), and as much under the dread of punishment, as if (to use the expressions of counsel) he had stood over her all the time with a rod. In conclusion, the learned judge declared his conviction, that at the time of making this will, the deceased was not in his sound mind; and he therefore pronounced against it.
Prerogative Court, April 19. Ustick v. Bauden.
This cause involved an important question, as to the revival of a former uncancelled will, by the cancellation of a will of much later date, executed subsequently toother formally prepared wills, published at intervening periods between the first or uncancelled paper, and the last, and which intermediate instruments had all been cancelled.
Sir John Nicholl gave judgment. The question, he said, arose upon the validity of a will executed by the late Stephen Ustick, esq. in the year 1807; the death of that gentleman had not taken place, however, until the month of January, 1823. This will was set up by Mrs. Frances Elizabeth Bauden, the sole executrix named therein; and was opposed by the rev. Robert Ustick (Clerk), the only brother of the testator. These persons, however, were not the only individuals who were interested in the present suit; for the deceased, besides his brother, left