This would have indicated that the dispository provisions were intended by the testator for his own physical comfort and benefit in another sphere of physical existence, and would have furnished one and the principal element of that quality of unsoundness of mind which the law recognizes as such in cases of disputed wills.
A late case in New York, decided in June, 1875, by the Surrogate, is another illustration. This was the case of the will of Harriet Douglas Cruger, made when the decedent was seventy-nine years of age, and in which she disposed of the bulk of her very large estate to the American Bible Society, and the Board of Foreign Missions of the Presbyterian Church. The history of the lady’s life is an eventful and interesting one. Belonging to a family of wealth and standing, possessed of a large private fortune, and endowed by education and training with rare personal and mental accomplishments, she married early in life, and met with disappointment and misfortune; for it was soon followed by a separation, and a law suit which continued for over eight years, between herself and her husband. She had some nephews and nieces, to whom, at one time, she expressed an intention of leaving her property. In the year 1866, she suffered an injury which affected her mind, and then, at times, was undoubtedly a raving, excited lunatic. Her pastor, the Rev. Dr. Paxton, and her physician, Dr. Parker, testify to her condition then as one of undoubted lunacy. She had on her mind a delusion that the devil was bodily present under her bed, and because of this was in the greatest anxiety and terror. She told her pastor of it, and further communicated to him her intention to give, as a means for her soul’s salvation, the most of her property to the religious and charitable societies of her church. He very prudently dissuaded her from this, properly instructing her that her salvation could not depend on such an act, and endeavoring to reason her out of her delusion, but to no purpose. In the fall of 1867, a will was prepared by Charles O’Connor, who was deceived as to her condition, giving her property to the societies named. The will was contested, and rejected, according to the established rule, that her insane delusion, acting on her mind at the time, affected the disposition of her property, and her will was clearly the offspring of such a delusion.
In the case of Austen v. Graham,[97] the testator was a native of England, but had lived in the East, and was familiar with Eastern habits and superstitions, and professed his belief in the Mohammedan religion. He died in England, leaving a will, which, after various legacies, gave the residue to the poor of Constantinople, and also towards erecting a cenotaph in that city, inscribed with his name, and bearing a light continually burning therein. The court pronounced the testator to be of unsound mind, principally upon the ground of this extraordinary bequest, which sounded like folly, together with the wild and extravagant language of the testator, proved by parol. But on appeal it was held that as the insanity attributed to the testator was not monomania, but general insanity, or mental derangement, the proper mode of testing its existence was to review the life, habits, and opinions of the testator, and on such a review there was nothing absurd or unnatural in the bequest, or anything in his conduct at the date of the will indicating derangement, and it was therefore admitted to probate.
Section 3.—Senile Dementia.
The imbecility and feebleness of mind resulting from extreme old age is another cause of testamentary incapacity. Not that the law fixes a limit beyond which it is presumed a testator cannot exercise the testamentary disposition of his property intelligently; but it takes into account the well known, familiar instances of the loss of a person’s memory and mental capacity, owing to the decrepitude of old age, and it accepts evidence in those instances where senile decay is alleged, as to the ability of an aged person to rightly and understandingly make his will. It was said, in a case in the Ecclesiastical Court in England, that “extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the court.”[98]
But if a man in his old age becomes a very child again in his understanding, and becomes so forgetful that he knows not his own name, he is then no more fit to make his testament than a natural fool, a child, or a lunatic.[99]
Courts are not disposed to accept every statement regarding the eccentric or weak movements of an old person as incapacitating such a one from making a will; on the contrary, there is every disposition to permit such a one, if not unmistakably enfeebled in intellect, or unduly influenced, to exercise a right that throws around one, at such a period, a dignity and power entitling them to the respectful regards of those who otherwise might not bestow upon them the attention due to the helplessness of old age. Chancellor Kent well expressed this leaning of courts, in the case of Van Alst v. Hunter.[100] He says: “A man may freely make his testament, how old soever he may be.... It is one of the painful consequences of old age, that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has, in protracted life, to command the attention due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated.”
In the case of Maverick v. Reynolds,[101] it appeared that Mrs. Maverick, at the time of making the will offered for proof, was ninety years of age, and the probate was contested on the ground of testamentary incompetency and undue influence. It was shown that though the old lady did not remember the decease of her son and his wife, that she had sufficient intelligence to inquire about a certain one of her houses, its repairs, and the collection of the rent. One witness stated, as instances of her bad memory, that she forgot to pay her a dollar she had borrowed (a defect of memory not confined to old age); that she was in the habit of making statements, and afterwards denying she had made them, (not confined to old age, by any means) and that she would repeat the same questions after they had been answered. As an instance of the popular belief as to the capacity of old age, one witness said: “She had a bad memory; she was like other old people eighty years old; we consider them childish.” Another witness, a lady, testified: “As long as I can bring my memory to bear, (a considerable time, it appeared) she has been childish. In my opinion, she was childish twenty-five years ago. She would sing childish and foolish songs, and tell foolish stories, which I considered unbecoming for a woman of her years, and the people would all laugh at it. She would talk sometimes of getting married, and would fancy she was making ready to be married.” Against all this was the testimony of her pastor, Rev. Dr. Berrian, that her conversation was devout and pertinent, and he considered her a rather remarkable person for her age. Her physician also testified that he never observed any indication of unsound mind.
Surrogate Bradford, in an able opinion, examined the evidence carefully and at length, and came to the conclusion to admit the will to probate. About her levity, he remarks: “It is worthy of remark, that persons attaining great age often possess a large degree of that cheerful and lively manner which characterizes youth, and which probably in them contributes greatly to a green old age, when others, not so old, and possessing less of this sprightliness and vivacity, appear more decrepid and stricken in years.”
As a principle of such cases, he announces: “Great age alone does not constitute testamentary disqualification, 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 well settled intentions, it is not unreasonable in its provisions, and has been executed with fairness.”