times disregarded the calls of nature, or attended to them in improper places. It was testified, however, in explanation of these facts, that his hands being swollen and clumsy, and the button-holes of his pantaloons much worn, he had some difficulty in buttoning and in keeping them buttoned; that the uncleanliness was not habitual, but limited to occasions when he was suffering from diarrhoea, and that other instances of impropriety, which had been alleged, occurred during his last illness, when his mental unsoundness was admitted by the other party. It also appeared that he was somewhat intemperate in the use of spirituous liquors.

§ 300. No one, at all acquainted with the habits of old age and with the effect of senile dementia on the mind, can entertain a doubt of the testator's competency to make his will. True, he was more forgetful of the present than of the past; he frequently forgot what he had just before said or done; and he sometimes disregarded the common observances of life. All this, however, may be said of multitudes of old men whose competency for any business is never questioned by those who know them best. However weak may have been the mind of this old man, he still was acquainted with the value of property, especially of his own; he recognized his relatives and friends; was always aware of the exact nature of their relations towards him, and of their respective claims on his bounty; he still was capable of feeling the sting of filial ingratitude, and of being actuated by motives of ordinary prudence and discretion. If his mind were not sufficiently vigorous to engage in contracts and speculations of large magnitude, it was none the less able to bequeath his property, the kind and amount of which he perfectly understood, to relatives and friends whom he still recognized and loved. The will was a rational act, rationally done, and there was not a tittle of evidence to show that the testator was under improper influences.

§301. The court, at each trial, refrained from any comments on the evidence relating to the testator's mental condition, and the jury were left to their own unenlightened and unassisted deliberations. There were peculiar reasons, per

haps, for taking this course, in the present case, but we may be allowed to question its propriety as a general rule of prac tice. In cases like these, which are characterized by the abundance and discrepancy of the evidence, it needs a cool, tenacious, and intelligent mind to recapitulate this evidence; to sift, to analyze, weigh, and finally stamp it with its proper value. The jury, it is true, are sole judges of the facts, and if the question here were, whether certain facts offered in evidence were true or false, not a remark might be required of the court. But since they have to do with a very different question, that is, whether these facts warrant certain inferences relative to mental capacity, they are unable to answer it correctly, we apprehend, without the light that is derived from superior penetration and attainments. The knowledge necessary for this purpose is of a technical kind, which a jury cannot be expected to possess, and the very abundance of the evidence is calculated to fill their minds with uncertainty and confusion. If they can hear the opinions of experts-of persons who have given especial attention to this branch of knowledge-respecting the precise value of all these facts considered in relation to the point they are designed to establish, then indeed they would be in a condition to form conclusions of their own. But since this is not always practicable,' are they to be left to float about on a sea of conjecture, without star or compass to guide their course? Must a jury, not one of whom, perhaps, ever observed a case of insanity, or even studied the operations of the sane mind, take upon themselves to say that certain facts do, or do not

1 Nothing can more strongly illustrate the necessity of some such measure as we have suggested, (§ 44) than a fact that occurred in this case. The appellees were desirous that the evidence relating to the testator's mental condition, should be heard by some one particularly acquainted with the subject of insanity, who might testify, on the strength of such knowledge, whether the evidence showed him to have been incapable of making a valid will. The attendance of such a witness could not be obtained, for one of the gentlemen applied to - and they were the nearest-resided at a distance of 120, and another of 250 miles. Had it been otherwise, we might not have seen the most sacred of legal acts annulled on the most trivial grounds.

prove the presence of testamentary capacity; in other words, to decide upon professional questions of acknowledged difficulty? The really intelligent and conscientious juror, distracted by an appalling mass of evidence, much of which is irrelevant and contradictory, which he may try in vain to unravel and arrange, and puzzled by questions he never considered before, will and ought to look to the court for assist

ance.

§ 302. The principle laid down by the court, at the first trial, that a disposing mind means "so much mind and memory as would enable him to transact common business with that intelligence which belongs to the weakest class of sound minds," may be theoretically correct, but it seems to be of too abstract a nature to be practically applied by jurors. To compare one mind with another of different calibre, is a task for which they are altogether unfitted by their previous tastes, habits, and studies. Justice merely requires that the strength of the mind should be equal to the purpose to which it is applied. If this simple principle be distinctly presented to the minds of the jury, there are few so dull as to be unable to give it a practical application. It is not only reasonable, but it has the merit of having been repeatedly recognized in courts of law, until it has now obtained all the force of established authority. "He may not have sufficient strength of memory and vigor of intellect, to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will." 1 "A man may be capable of making a will, and yet incapable of making a contract, or to manage his estate."2

§ 303. We are to bear in mind, however, that testamentary dispositions generally imply an exercise of memory.

1 Stevens and wife v. Vancleve, 4 Wash. C. C. R. 262.

2 Harrison v. Rowan, 3 Wash. C. C. R. 580. Nowhere has the subject of testamentary capacity been treated with so much good sense and regard to scientific truth, as in the charges of the court from which the above quotations are made. With the progress of sound views on this subject, the correctness of the principles there laid down will only be the more firmly established.

The mind must be able to bring up before it scenes and persons connected with the past as well as the present, for without such ability, persons may be overlooked who would otherwise have held a prominent place in the act, and transactions forgotten which might naturally be supposed to have an effect upon its dispositions. A will which makes no mention of relatives who had a natural claim on the bounty of the testator, and in regard to whom, he apparently entertained only the kindest feelings, creates a suspicion that his memory was at fault, and unless the fact is satisfactorily explained, a strong presumption is raised against the validity of the will. Many old men who have begun to lose their faculties, have a passion for making wills, and so far as the form is concerned, they are able to do it correctly, but they are often governed by the whim of the moment rather than any definite views of the claims which others may have upon them, and not having them brought to their notice by any one else, they are liable to overlook them unintentionally.

CHAPTER XI.

§ 304.

FEBRILE DELIRIUM.

CEREBRAL affection, of some kind or other, we have considered as essential to the existence of insanity—as constituting in fact the whole disease; but there is another form of mental derangement of very common occurrence, in which the cerebral affection is only an accidental symptom of severe disease in the brain or some other organ. The functions of the brain are disturbed in each, but they differ so widely in their causes, progress, and termination, that the propriety of distinguishing them from each other for medico-legal, as well as therapeutical purposes, is universally recognized. Few diseases terminate in death without presenting at some period or other of their progress, but more particularly towards their close, more or less disturbance of the mental faculties; organic diseases of the brain, especially acute inflammation of its membranes and its periphery, are generally accompanied with delirium; and it is sometimes a symptom of acute disease in other organs, in consequence of the cerebral irritation which they sympathetically produce. It is seldom entirely absent in fevers of any severity, and is readily determined by inflammations of the mucous and serous membranes, particularly of the alimentary canal. In inflammation of the lungs, liver, spleen, and kidneys, it appears only towards the last period of the disease when it is approaching a fatal termination. Surgical operations, too, that prove fatal, are ordinarily attended at last with delirium. In chronic diseases, such as cancer, dropsy, consumption, the mind is seldom impaired, except that occasionally, during the final struggle, it wanders over