The Curiosities and Law of Wills

by John Proffatt

The physical incapacity of the deaf and dumb formerly disqualified them from making a will. Blackstone lays down the rule:[80] “Such persons as are born deaf, blind, and dumb, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void.” And in Bacon’s Abridgment,[81] it is said: “A man who is both deaf and dumb, and is so by nature, cannot make a will; but a man who is so by accident may, by writing or signs, make a will.” But since this class of persons have, of late, been brought to a considerable intelligence by the humane efforts of worthy men to communicate knowledge to them, there is no longer any reason or sense in excluding them from the testamentary privilege. However, in their cases, greater circumspection is needed in communicating with them as to their intention, and a stricter regard is paid to the observance of the requirements of execution. The question was carefully examined by the Surrogate of New York,[82] with the following results:

The law does not prohibit deaf, dumb, or blind persons from making a will. Defects of the senses do not incapacitate, if the testator possesses sufficient mind to perform a valid testamentary act. The statute does not require a will to be read to the testator in the presence of the witnesses; but it is proper to do so when the testator is blind and cannot read. In such cases, the evidence must be strong and complete that the mind accompanied the will, and that the testator was in some mode made cognizant of its provisions. This may be established by the subscribing witnesses, or by other proof.

So, also, it seems a drunken man, who is so excessively drunk that he is deprived of the use of his reason and understanding, cannot make a will during that time; for it is requisite, when the testator makes his will, that he be of sound and perfect memory; that is, that he have a competent memory and understanding to dispose of his estate with reason.[83]

We come now to treat of that incapacity which gives rise to most frequent and difficult litigation, and upon which judicial discrimination is most generally exercised—the incapacity of those who are of unsound mind, or persons non compos mentis.

There is no investigation in the whole domain of law that is attended with so many lamentable phases, where the foibles, indeed, the ludicrous side, of human nature, are more exposed; for it happens that those who will most carefully and tenderly screen a man’s weaknesses, vagaries, and eccentricities whilst he is living, will, if a contest takes place in which they are interested, after his death, most readily reveal, in all their nakedness and boldness of outline, the infirmities and superstitions of the deceased.[84]

As a principle of law of universal application, a person of unsound mind is incompetent to make a valid disposition of his property, either before or after his decease, except during a lucid interval. The only difficulty is, to determine exactly and unerringly the particular persons who may be thus classed, and to agree upon some mode or standard by which we can class such unfortunate people. Here is the difficulty; for all men do not view a person’s acts in the same manner, and are not similarly impressed by them. What, to some, would infallibly be the exhibitions of a diseased mind, may, to others, be the harmless frolics of a person of odd and eccentric manners. And, just for this reason, the decisions of courts have fluctuated, and, on this subject, have been the least satisfactory. When we lay down a definition of insanity, and agree upon it, we are next met with the further difficulty, to bring the facts of a person’s life or actions within it, and so to classify them.

What is the definition of a person non compos mentis? The law has to depend on medical writers for this information. Taylor, in his Medical Jurisprudence, gives us a definition as follows: “The main character of insanity, in a legal view, is said to be the existence of delusion; i. e., that a person should believe something to exist which does not exist, and that he should act upon this belief.” Another definition is this: “Where there is delusion of mind, there is insanity; that is, when persons believe things to exist which exist only, or, at least, in that degree exist only, in their own imagination, and of the non-existence of which neither argument nor proof can convince them: these are of unsound mind.”[85]

The rule of the common law, until within the last hundred years, was, that it required that a person should be absolutely a lunatic, that there should be entire alienation of mind, in order to incapacitate him from making a will; and there was no such theory then as partial insanity, or monomania, which the law takes notice of in modern times. The rise and acceptance of this theory mark an epoch in legal adjudications; it is certainly an advance in the science of law in the last century.

The germ of this theory was first broached in the celebrated case of Greenwood.[86] In that case, Mr. Greenwood, a barrister, whilst insane, took up an idea that his brother had administered poison to him, and this became the prominent feature of his insanity. In a few months he recovered his senses, and was able to attend to his business, but could never divest his mind of the morbid delusion that his brother had attempted to poison him, under the influence of which (so said) he disinherited him.

On a trial in the Court of King’s Bench upon an issue devisavit vel non, a jury found against the will; but a contrary verdict was had in another court, and the case ended in a compromise. On the theory of the common law, as it then stood, this will being made in a lucid interval should have been valid.[87]