Delafield v. Parish

Full title: HENRY DELAFIELD, Executor, c., of Susan M. Parish et al., v . DANIEL…

Court: Court of Appeals of the State of New York

Date published: Jun 1, 1862

25 N.Y. 9 (N.Y. 1862)

Opinion

June Term, 1862

Alexander S. Johnson and William M. Evarts, for appellants Delafield and Mrs. Parish's executor.

John W. Edmonds, for appellants Ann Parish and Martha Sherman.

Charles O'Conor and John K. Porter, for respondents.

DAVIES, J.

This is an appellate tribunal, and its ordinary duty is to review the decisions of the courts from which appeals lie to it, solely on questions of law. There is a class of cases, however, where it is incumbent on us to review questions of fact, and the present cases are of that character. We are called upon, by the appeals taken therein, to affirm or reverse the decree of the surrogate of New York, which on appeal has been affirmed by the Supreme Court of the first judicial district. By that decision the surrogate refused to admit to probate two codicils to the will of Henry Parish, deceased, alleged to have been made by him, one on the 15th of September, 1853, and the other on the 15th of June, 1854.

It appears that Mr. Parish, while in conceded health, in the full possession of all his faculties, and after much deliberation, frequent consultation and discussion with his counsel, on the 20th of September, 1842, made and executed his last will and testament. Although his attention seems to have been afterward, on several occasions, attracted to its provisions, and although he must have been aware that the devise to his wife of two pieces of real estate in the city of New York (one of which was the dwelling-house occupied by them) had been rendered inoperative by the sale of them, and although he was equally conscious that his estate had been greatly augmented, and was constantly increasing by its annual accumulations, yet while in health he intentionally and deliberately declined to make any alteration in its provisions, and for nearly seven years, notwithstanding these and other changes, persistently adhered to it, as originally framed and executed.

It is seldom that so much intelligent consideration, fixedness of purpose and adherence to conclusions, are evinced in the preparation and execution of a will.

On the 19th of July, 1849, Mr. Parish, while in the apparent enjoyment of full health, was struck with an attack of paralysis, described by the physician as hemiplegia.

Whether or not he had testamentary capacity after that period, has been the subject of the elaborate investigation, and the learned, able, and extended discussions in these cases.

At the time the will of 1842 was made, the testator had no child, and made no provision for any. He never had one. He estimated the total of his estate, real and personal, then to be $732,879. By this will, he gave to his wife $331,000, including the two pieces of real estate subsequently sold by him, and which he estimated at $23,000. To the relatives of his wife he gave specific legacies amounting to $95,000. At the time of his attack, although he had reduced the provision made for his wife, $23,000, by the sale of the two pieces of real estate mentioned, yet he had increased the value of the New Orleans real estate given to her, by an expenditure thereon amounting to $21,500, and by addition to his furniture, paintings, statuary, silver, c., equal to about the sum of $25,000, all which, by the provisions of the will, were given to her. He had therefore kept good the amount secured to Mrs. Parish by the will, and had enhanced it in the manner indicated, so that on the 1st of July, 1849, it amounted, according to his estimate, to about the sum of $350,000.

He thus, on grave deliberation, gave to his wife and her relations nearly two-thirds of his whole estate as it then existed. By his will he also gave specific legacies to various relatives of his own blood, and to personal friends, amounting in the aggregate to the sum of $270,000, and then gave the residue and remainder of his estate to his two only and surviving brothers, Daniel Parish and James Parish. The amount they would have taken, according to the testator's estimate of his estate, at the date of his will, if it had then taken effect by his death (an event which it is apparent he did not then contemplate as likely soon to happen, being then 54 years of age, and in apparent good health) would be about the sum of $18,000 to each, less than the amount of the legacies given to each of his sisters. The small sum given to his brothers, in comparison to the amount given to others, and the language used in the will, as applicable to this residuary devise, are convincing evidence to our minds of the testator's intention to give permanency to the disposition of his property then made by him, and of his expectation that this residue would ultimately secure to his brothers such an ample portion of his estate as would evince his affection for them, and satisfy them that their just and natural right to share in his estate had been fully recognized by him. His solicitude, in the first place, to make ample provision for his wife, is clearly apparent from the testimony of Mr. Havens. He was not only desirous of securing her such a portion of his estate as would enable her to maintain her established position in society, and supply to her all the wants and luxuries to which she had been accustomed, but he was also anxious that the provision should be so ample that a carping and fault-finding world should so esteem it. As already observed, by his will, he constituted his two brothers his residuary devisees, and declared (and such declaration controls this residuary clause) that he intends his will not only to apply to the property then owned by him, " but to all that may be thereafter acquired, by purchase, descent, distri bution, or otherwise"

At this time the testator's income was about $60,000 annually, and his expenses were about $10,000 a year. Without any extraordinary expenses or outlays on his part, the testator must have been aware that his estate would be augmented by its natural increase by about the sum of $50,000 annually, and this entirely independent of the additions by profitable investments, and other uses of his means, which it is apparent were employed by him to increase his wealth. The inventory of his estate made by him July 1, 1849, shows it had increased in seven years, at the valuation he then put upon the various items of his property, about the sum of $200,000; and add thereto the expenditure on the Union Place property over and above his estimate of its value, $52,000, and the actual increase was over $250,000. He was therefore well aware that, by the terms of his will, these augmentations of his estate would fall into the residuary clause, and go to his brothers. Their portion of his estate, he must have seen, would be munificent, and such as brothers in these circumstances would naturally expect from a wealthy brother, dying without issue, after making ample provision for his widow.

The testator witnessed this augmentation with full knowledge of its destination, and with the certainty of its continuance and increase, for the period of seven years, without any intimation of a change of his purposes, or expressing any wish to divert it to different objects.

Such was the permanent character of the disposition made by the testator of his estate in full health, and such his final and settled purpose in reference to it, down to the time of his attack in July, 1849. From thence till his death, in March, 1856, the wife of the deceased was hardly ever absent from his presence, and she and her relatives were his constant companions and attendants, to the exclusion almost wholly of his own relations, with whom up to this period, it would appear, he had always lived on terms of intimacy and cordiality.

Mr. Parish having recovered from the severity of his attack, a codicil was prepared at the suggestion of Mrs. Parish, for him to execute, and which was executed on the 29th of August, 1849, whereby the testator gave to his wife certain real estate, amounting in value to about the sum of $200,000 The learned counsel who drew this codicil at the request of the devisee, and superintended its execution, having, as he says, fears that others might have doubts of the testamentary capacity of the testator, recommended that it should be re-executed when his health and mind should have improved; and it being supposed that such improvement had taken place, it was accordingly re-executed on the 17th of December, 1849.

In September, 1853, Mrs. Parish and her brother having made an estimate of the estate of Mr. Parish as it then was, and valuing the same at $1,186,960, Mrs. Parish drew up instructions for the disposition of about $500,000 of personal property, and employed the same counsel who had drawn the codicil of 1849, to prepare another for Mr. Parish to execute, disposing of this amount of personal estate, all of which was to be given to Mrs. Parish, except the sum of $52,000 invested in stocks, to be given to certain charities. It was claimed by Mrs. Parish that nearly all of this property was then hers, by virtue of gifts from her husband since his attack, inter vivos, and the nominal title to which had been changed by her from his name into hers. This codicil was doubtless prepared in consequence of the suggestion of the counsel, that grave doubts were entertained of the validity of these gifts inter vivos. A codicil was accordingly prepared (incorporating into it the codicil of 1849), by which personal property amounting to $349,460 was given to Mrs. Parish, and $50,000 to be divided among certain enumerated charitable institutions. It also revoked the appointment of Daniel Parish as one of the executors of the will of 1842, and the legacy of $10,000 given to him by that will.

On the 15th of June, 1854, a third codicil was prepared by the same counsel at Mrs. Parish's suggestion, and which was executed on that day, which revoked the residuary gift and devise in the will of 1842 to the brothers Daniel and James, and installed Mrs. Parish in their place as the devisee of the whole residue of his estate.

It would seem from the testimony, if Mr. Parish's signs and gestures were correctly interpreted, that it was his will, at the time of the re-execution of the codicil in December, 1849, to revoke and annul the specific legacies, amounting to the sum of $130,000, given by the original will to the children of his brothers Daniel and James; and it appears he was only deterred from insisting that it should then be done, by the remark of the counsel, "that he wished it might not then be done; that it would fatigue and disturb Mr. Parish; that it would require a great deal of deliberation;" and by the assurance given by the counsel, "that he could come and do it at some other time." At the time of the preparation and execution of the codicil of September, 1853, in the numerous interviews and consultations had in reference to it, it does not appear from the testimony that any suggestion was made by the counsel to Mr. or Mrs. Parish in reference to the revocation of these legacies, or that the subject was alluded to by either Mr. or Mrs. Parish At the time of the preparation of the codicil of June, 1854, in an interview between Mrs. Parish and the counsel, in Mr. Parish's presence, she again suggested that Mr. Parish wished to revoke these legacies, and the counsel understood Mr. Parish as so desiring; but on a suggestion of the counsel, that "it would be harsh to do so," the subject was dropped.

It is apparent, if Mr. Parish had a wish on this subject, and it was correctly understood, it was not carried into effect by those around him, and who were alone competent, or had the power to impart vigor and give effect to his wishes. At any rate, their revocation was not incorporated into either of the codicils of December, 1849, or of June, 1854. It is therefore undeniable, that if these codicils expressed a portion of his wishes as to the disposition of his property, they failed to give expression to the whole of them, and that, as to this large sum of money, it took a direction, if Mr. Parish's gestures and signs were correctly interpreted, contrary to his expressed and earnest intentions; and his acquiescence in the suggestions made, if he did so acquiesce, shows conclusively the feebleness of his purposes, and his ready submission to the will of others.

The surrogate of New York, after a most protracted examination of witnesses, with the opportunity of hearing, and himself taking down their testimony, carefully weighing and arranging it as the investigation proceeded, scrutinizing each witness, and his manner on the stand, with the great advantage of personally seeing the intelligence, candor, accuracy, and truthfulness of each; aided by the elaborate discussions and critical analysis of the facts by the able and distinguished counsel employed in the case — found and decided as matter of fact that the testator had not testamentary capacity on the 15th of September, 1853, or on the 15th of June, 1854, to make the two codicils of those dates respectively, and that they were not his will or any part thereof, and he refused to admit the same to probate. This decree has been affirmed by the general term of the Supreme Court, and from that decision, those claiming the codicils to be valid have appealed to this court.

Before proceeding to the examination of the facts in the present case, it may aid us in arriving at a correct conclusion to advert to a few rules of law, which it is deemed are well recognized and long established:

It is provided by the statute law of this state, that "all persons, except idiots, persons of unsound mind, married women and infants, may devise their real estate, by a last will and testament," duly executed, in accordance with the formalities prescribed by law (2 R.S., p. 57, § 1); and that "every male person of the age of eighteen years or upwards, and every female not being a married woman, of the age of sixteen years and upwards, of sound mind and memory, and no other, may give and bequeath his or her personal estate by will, in writing" (2 R.S., p. 60, § 21); and the statute of wills of 34 and 35 Hen. VIII declares that no will of lands shall be valid if made by any "idiot, or by any person of non-sane memory." But competency to execute a testament does not exist, unless the alleged testator has reason and understanding sufficient to comprehend such an act. (Swinburne on Wills, part 2, sec. 4; Marquis of Winchester Case, 6 R., 23 a; Combe's Case, Moore, 759; Herbert v. Lows, 1 Ch., 12, 13; Mountain v. Bennett, 1 Cox, 353.)

In the Marquis of Winchester Case it is said that "by law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions; but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason, and that is such a memory which the law calls sound and perfect memory."

In Mountain v. Bennett (1 Cox, 353), the Lord Chief-Baron said: "Two things must be made out, in the first instance, by those who support the will — the formality of the instrument and the sanity of the person making it; that if a party impeaching a will relies upon actual force being used upon the testator, it is incumbent on him to show it;" and he adds that "there is another ground, which, though not so distinct as that of actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will, — that is, if a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient soundness and discretion to regulate his affairs in general; yet, if such dominion or influence were acquired over him as to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind."

Lord KENYON, in addressing the jury in Greenwood v. Greenwood (3 Curteis, App., 2), says: "I take it, mind and memory competent to dispose of his property, when it is a little explained, perhaps may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wishes to dispose of it; if he had the power of summoning up in his mind so as to know what his property was, and who those persons were, that then were the objects of his bounty, then he was competent to make his will."

In Marsh v. Tyrrell (2 Flagg, 122), that experienced and learned judge, Sir JOHN NICHOLL, said: "It is a great but not uncommon error to suppose that, because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, from a consideration of all the circumstances of the case."

The observations of ERSKINE, J., in Harwood v. Baker (3 Moore, Priv. C.R., 282-290), a case not unlike that now under consideration in some of its leading features, are worthy of note. He says: "But their lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but that he must have also capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property;" and he justly and truthfully adds, "that the protection of the law is in no cases more needed than it is in those where the mind has become too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration; and therefore the question which their lordships propose to decide in this case is, not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it; but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property."

Mr. Justice WASHINGTON, in Harrison v. Rowan (3 Wn. C.C., 385, 836), speaking of the capacity of a testator necessary to a valid will, remarks: "He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged; a recollection of the property he means to dispose of; of the persons who are the objects of his bounty; and the manner in which it is to be distributed between them."

In Den v. Johnson (2 Southard R., 454), the Chief Justice, in charging the jury on this point, said, "that a disposing mind and memory is a mind and memory which has the capacity of recollecting, discerning, and feeling the relations, connections, and obligations of family and blood; that, though it has been sometimes said, as had been stated, from the books that if one could correctly tell his name, say the day of the week, or even ask for food, it is a sufficient evidence of a disposing mind; yet such sayings, though they show that wills are not lightly to be set aside on suggestions of incapacity, can and ought to have but little weight with rational men, investigating the truth upon their oaths; that if, upon the whole, they should be of opinion that the mental powers of the testatrix were so far enfeebled and broken as that she could not make a discreet disposition of her affairs herself, and the will in question was devised by other persons, and only assented to by her, upon being asked, without the power of understanding it, then they ought to find for the plaintiff;" that is, that it was not her will.

In Boyd v. Ely (8 Watts' R.), SERGEANT, J., in delivering the opinion of the court, says: "The great, broad and intelligible question is, whether the mind was restored so as to be sound, whole, compos; or whether a portion of its thinking and judging powers, as connected with the subject of the will, remained mangled and perverted at the time of making the codicil, so as to leave it incapable of interfering with his former disposition of his estate, with judgment and discretion."

In Shropshire v. Reno (5 J.J. Marsh., 91), ROBERTSON, Ch. J., observed that the facts in that case led the court to the opinion: "That the testator had not a disposing mind, or that if he ever had, it was not in a disposing state. He was not superannuated, nor was he absolutely stultus or fatuus; but all the facts combined tend to show that he had not a sound memory, nor sufficient mind, nor a mind in a proper state for disposing of his estate with reason, or according to any fixed judgment or settled purpose of his own. This we consider the true test, established not only by philosophy but by law." Converse v. Converse (21 Verm. R., 168), lays down the rule, that if the testator, when he made the will, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as therein provided for, both as to the property he meant to dispose of by his will and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them, then he possessed a sound and disposing mind and memory." This rule was approved by REDFIELD, J., who added: "He must undoubtedly retain sufficient active memory to collect in his mind, without prompting, particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them."

In 1828, Chancellor WALWORTH, in Clarke v. Fisher (1 Paige, 171), said: "The general principles in relation to the capacity of a person to make a will are well understood. He must be of sound and discerning mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment in reference to the situation and amount of such property, and to the relative claims of different persons who are or might be the objects of his bounty." In that case the Chancellor reversed the decision of the surrogate, which admitted the will of John Fisher to probate. The testamentary capacity of John Fisher was again the subject of a judicial investigation before Vice-Chancellor SANDFORD, in 1845 and 1846 (3 Sand. Ch. R., 351), and he held that he had testamentary capacity. This decree was reversed, on appeal, by the Chancellor, who held the will void, and this court, on appeal, affirmed the decree of the Chancellor (2 Comst. R., 498). It is stated in a note by the reporter, that a majority of this court were of the opinion, upon all the facts, that the Chancellor had properly set aside the will, but without passing upon the question as to the degree of mental capacity necessary to make a will, affirming the proposition that the testator in that case had not testamentary capacity. SHANKLAND, J., said that, regarding as he did, the cases of Stewart v. Lispenard (26 Wend., 255), and Blanchard v. Nestle (3 Denio, 37), as fixing the standard of testable capacity at any point above that of the idiot and the lunatic, the will cannot be declared void for the want of a sound disposing mind.

The case of Stewart v. Lispenard has challenged much discussion in this State, and has not been regarded with favor by the Bench or the Bar. The circumstances under which it was heard and decided on the part of the court are such as to carry with it little if any weight of authority. In that case the will of a person conceded to be but a slight remove, in intellectual power, above an idiot, was by a decree of that court, directed to be admitted to probate. The argument of the case was commenced in that court on the 21st of December, 1841, and concluded on the 24th. On the 31st of that month, the last day of the official term of one-fourth of the Senate, the case came up for decision, and was decided, with little opportunity for an examination of the facts, which the report says were contained in a voluminous case of upwards of 300 pages, and without the benefit of any written opinion, except that of Senator LIVINGSTON (and which has since been published), or any suggestions even from the judges of the Supreme Court. The only Justice of that court, being present by courtesy to form a quorum, stating that he had no written opinion to present, not having had leisure since the argument was closed, to digest the facts of the case, or even to read the numerous authorities which had been cited, amounting to nearly or quite a hundred cases, and he declined to deliver an opinion. Senator VERPLANCK orally stated his reasons for reversal, and thereupon the court, composed exclusively of Senators, by a vote of 12 to 6, reversed the decree of the Chancellor, which affirmed the judgment of the Circuit Judge, who affirmed the decree of the surrogate refusing to admit the will to probate, and the court, by a vote of 11 to 8, made a decree directing the will to be admitted to probate. After the breaking up of the court, the learned opinions of two of the Senators, who voted to reverse the decree of the three courts below, were published and appear in our reports; but they must be regarded as containing the views of the distinguished Senators and not those of the court. We fully concur in what is said by Mr. Justice CLERKE, in Thompson v. Thompson (21 Barb., 116), that "the opinions of these learned and distinguished Senators in this case are not binding authority." It is not an inappropriate commentary upon this case to add that subsequent to the decision of the Court of Errors, in an action of ejectment in the Superior Court of New York, before Chief Justice OAKLEY and a jury, the jury, under instructions from the court, found that this same Alice Lispenard was an idiot, and had no testamentary capacity, thus annulling this same will as to real estate. This verdict was rendered after a protracted investigation, and the examination of a large number of witnesses.

Blanchard v. Nestle (3 Denio, 37) was decided in the Supreme Court in 1846, and affirmed the doctrine of Stewart v. Lispenard, and mainly on the authority of that case, that mere imbecility of mind in a testator, however great, will not avail against his will, provided he be not an idiot or a lunatic.

In Stanton v. Weatherwax (16 Barb., 259) the Supreme Court of the fifth district reversed a judgment of the surrogate, in which he applied to the testator the rule in reference to idiots and imbeciles, as stated and illustrated in the Lispenard case. The court say that "perhaps the unsoundness of the testator's mind extended to so many subjects, and perverted his judgment in relation to so many topics as to obscure and distort his entire mental faculties, and to amount to a general unsoundness of mind, which would entirely incapacitate him from making a rational or valid disposition of his property."

In Newburn v. Goodwin (17 Barb., 236), STRONG, J., thinks the rule established, referring to the Lispenard case, and Blanchard v. Nestle, that the wills of excessively weak persons, and by those he says he means persons of the lowest degree of mental capacity, where there is a glimmer rather than light, are to be sustained, and he says "we must submit to it, whatever may be our opinion as to its necessity, propriety, or expediency."

This court, in two late cases under its consideration ( Buel v. McGregor, and in the matter of the will of Richard Ustick^_), has not considered this rule of obligatory force upon it, but has been disposed to give the language used in the statute its natural and obvious import and meaning. We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A testator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will.

_ The Reporter does not understand either of those cases as professedly impeaching the law of Stewart v. Lispenard, or as being regarded by the judges who delivered the opinions in them respectively as settling any point of law whatever. They turned upon mere questions of fact; and such cases have not heretofore been regarded, either by the court or the Reporters, as of such service to the profession as to justify their publication. The opinion in Buel v. McGregor was prepared by DENIO, J., who, as is apparent from the present case, did not intend to overrule the law of Stewart v. Lispenard, whatever he might think of its application in that particular case.

We are next to consider upon whom the law casts the burden of establishing the will of a deceased person. The party producing the paper or the proponent of a will makes the allegation that it is the will or the wish of a free and competent testator, and the onus probandi is upon the party propounding the alleged testamentary paper. The conscience of the court is to be satisfied by the party setting up the will, that it is the will of a free and capable testator. This clearly recognized rule is well expressed by PARKE, B., in delivering the judgment of the Judicial Committee of the Privy Council in Barry v. Bultin (1 Curt., 637; 2 Moore, P.C., 480), where he says: "The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute, and they have been acquiesced in on both sides. These rules are two: the first, the onus probandi, lies in every case upon the party propounding the will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator." Again: "In all cases, this onus probandi is imposed on the party propounding a will." In the late case of Browning v. Budd (6 Moore, P.C., 430) the same learned Judge said: "Their lordships have to apply to the facts of the case the established rule on this subject laid down in Parke v. Ollatt (2 Phil., 323), and fully explained in the case of Barry vs. Bultin (2 Moore, Priv. C., 480), viz., that the burden of proof lies upon the party propounding a will, and that a Court of Probate is not to pronounce in its favor unless it is judicially satisfied that the instrument propounded is the last will of a free and capable testator."

In Panton v. Williams (2 Curt., 530, 2 notes of cases, supplement, 21-29), certain papers propounded as the will and codicils of a party deceased, opposed on the grounds of forgery and fraud, were pronounced for by the Prerogative Court, but with great doubt and difficulty. That sentence was reversed by the Judicial Committee of the Privy Council, further evidence having been admitted. Lord BROUGHAM, in delivering the opinion (2 notes of cases, supplement, 29), said: "It is of itself not immaterial to consider that the contention of those who are setting up those papers is encumbered with so much difficulty; for whether the question arises between a will and an alleged intestacy; or, as in the present case, between one will and another of a prior date, the proof being upon the party propounding any testamentary writing, the course of administration directed by the law is to prevail against him who cannot satisfy the conscience of the Court of Probate, that he has established a will, or the prior instrument which is liable to no doubt, is to be established in preference to the posterior one, which cannot be so proved to speak the testator's intentions, as to leave the court in no doubt that it declares those intentions. There is no duty cast upon the court to strain after probate, and to grant it where grave doubts remain wholly unremoved, and great difficulties oppose themselves to our progress, which we are quite unable to surmount." Again, he says: "It may suffice to say that the proof eminently lies on him who sets up a will, and further, that it is more fatal than to his adversary if he leaves difficulties entirely without explanations." He adds: "It is much less material that those who seek to impeach a testamentary instrument should be unable to explain certain things in their case, and should be forced to admit that their argument is not in every point consistent with all the facts, than that they who seek to establish the will should give no rational, consistent, or intelligible solution of those difficulties which encumber their suppositions, and obstruct the path towards the conclusion they would have us arrive at. . . . We are of the opinion that grave suspicions rest upon material parts of the case, which it was necessary should be removed, before probate could be given, and that they have not been removed; that the testimony of the witnesses relied upon does not counteract the weight which the undoubted facts of the transaction fling into the other scale — nay, that there is no great difficulty in reconciling much of that testimony, indeed, all its most important portion, with the undisputed facts to which, upon a superficial view, it might seem repugnant."

In Baker v. Butt (2 Moore, P.C., 317), PARKE, B., said: "No rule has been acted upon in the court below which has not been long observed, not only in the Ecclesiastical Courts, but those of common law. . . . For if the party upon whom the burden of the proof of any fact lies, either upon his own case, where there is no conflicting testimony, or upon the balance of evidence, fails to satisfy the tribunal of the truth of the proposition which he has to maintain, he must fail in his suit; and in a court of probate, where the onus probandi most undoubtedly lies upon the party propounding the will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence, on both sides, is not judicially satisfied that the paper in question does contain the last will and testament of the deceased, the court is bound to pronounce its opinion, that the instrument is not entitled to probate; and it may frequently happen that this may be the result of an inquiry, in cases of doubtful competency in particular, without the imputation of willful perjury on either side; or it may be the judge may not be satisfied on which side the perjury is committed, or whether it certainly exists."

The same rule is distinctly recognized and enunciated by the Supreme Court of Massachusetts in Crowningshield v. Crowningshield (2 Gray, 526). It was there held, in accordance with the universal rule, that the burden of proving the sanity of the testator is upon him who offers the will for probate, and this burden does not shift upon evidence of his sanity being given by the subscribing witnesses. THOMAS, J., in an able and learned opinion, says: "When one dies owning real and personal estate, the law fixes its descent and distribution. Under certain conditions, however, it gives to such owner the power to make a disposition of his property, to take effect after his death. This is done by a last will and testament. To make such will, certain capacities are requisite in the maker, and certain formalities for its due execution. . . . When, therefore, a will is offered for probate, to establish it, to entitle it to such probate, it must be shown that the supposed testator had the requisite legal capacities to make the will; to wit, that he was of full age and of sound mind, and that in making it the requisite formalities have been observed. The heirs-at-law rest securely upon the statutes of descent and distributions until some legal act has been done, by which their rights under the statutes have been lost or impaired. . . . Upon whom, then, is the affirmative? The party offering the will for probate says in effect, This instrument was executed with the requisite formalities, by one of full age and of sound mind, — and he must prove it; and this is to be done, not by showing merely that the testament was in writing, that it bears the signature of the deceased, and that it was attested in his presence by three witnesses; but also that it was signed by one capable of being a testator, one to whom the law had given the power of making disposition of his property by will." The learned Judge further adds: "There are strong reasons why the same presumption as to sanity should not attach to wills as to deeds in ordinary contracts. Wills are supposed to be made in extremis. In point of fact, a large proportion of them are made when the mind is to some extent enfeebled by sickness or old age. It is for this reason that the execution of the will and the proof of its execution are invested with more solemnity, the statute requiring it to be attested by three or more competent witnesses; making void all beneficial devises, legacies or gifts to such interested witnesses, and requiring the presence of the three in probate court for its proof." In conclusion, he says: "On the whole matter, we are of opinion that where a will is offered for probate, the burden of proof in this commonwealth is on the executor or other persons seeking probate, to show that the testator was, at the time of its execution, of sound mind; that if the general presumption of sanity applicable to other contracts is to be applied to wills, it does not change the burden of proof; that the burden of proof does not shift in the progress of the trial, the issue throughout being one and the same; and that if, upon the whole evidence, it is left uncertain whether the testator was of sound mind or not, then it is left uncertain whether there was under the statute a person capable of making the will, and the will cannot be proved."

We have quoted thus largely from this opinion, for the reason that it is to our mind one of the most able and satisfactory upon the points under consideration in this case with which we have met. It is most carefully considered, ably reasoned, and fully sustained by authority. Its results command our entire assent. See also Quick v. Mason, 22 Maine, 438; Cilley v. Cilley, 34 id., 162; Wallis v. Hodgson, 2 Atk., 56; Powell on Devises (Jarman's ed.), p. 81, vol. i.; Newhouse v. Goodwin, supra; Clarke v. Sawyer, supra.

In this connection, it may be well to add a few remarks from the opinion of Mr. Justice ERSKINE, in the case of Harwood v. Baker, supra. They are in point, and lay down with accuracy the principles which should govern us in the examination of the evidence in this cause. He says: "Keeping in mind the principle, that in all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of the execution, incompetent to the exertion required for such a purpose; and further, keeping in mind that the disposition in question was not in accordance with any purpose deliberately formed before his mind became enfeebled by disease, we come to the examination of the witnesses whose evidence is relied on as proving that at the time of the executing the will in question, he was fully competent to form, and did deliberately form, the intention of leaving to his wife the whole of his property."

It seems to us that these cases fully establish the following propositions:

1. That in all cases the party propounding the will is bound to prove to the satisfaction of the court that the paper in question does declare the will of the deceased, and that the supposed testator was, at the time of making and publishing the document propounded as his will, of sound and disposing mind and memory.

2. That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the will, and the testamentary competency by the attesting witnesses, but remains with the party setting up the will.

3. That if, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question does contain the last will of the deceased, the court is bound to pronounce its opinion that the instrument is not entitled to probate.

4. That when it is sought to establish a posterior will, to overthrow a prior one made by the testator in health, and under circumstances of deliberation and care, and which is free from all suspicion, and when the subsequent will was made in enfeebled health, and in hostility to the provisions of the first one; in such case the prior will is to prevail, unless he who sets up the subsequent one can satisfy the conscience of the Court of Probate that he has established a will. And also the prior will is to prevail, unless the subsequent one is so proven to speak the testator's intentions, as to leave no doubt that it does so speak them.

5. That it is not the duty of the court to strain after probate, nor in any case to grant it, where grave doubts remain unremoved, and great difficulties oppose themselves to so doing.

6. That the heirs of a deceased person can rest securely upon the statutes of descents and distributions, and that the rights thus secured to them can only be divested by those claiming under a will and in hostility to them, by showing that the will was executed with the formalities required by law, and by a testator possessing a sound and disposing mind and memory.

The maxim, qui se scripsit hæredem, has imposed by law an additional burden on those claiming to establish a will under circumstances which call for the application of that rule, and the court in such a case justly requires proof of a more clear and satisfactory character. Such a condition is exhibited by the testimony in the present case. The two codicils under consideration were exclusively for the benefit of Mrs. Parish, with the exception of the charitable gifts, and although they were not actually written by her, yet they were drawn up at her suggestion, upon her procurement, and by counsel employed by her. She prepared and gave the instructions for them, and in judgment of law they must be regarded as written by herself: Facit per alium, facit per se.

The rule which should govern the court in such a case is enunciated in Barry v. Bultin (1 Curt. Eccl. Rep., 637). It is there said, that if a party writes or prepares a will under which he takes a benefit, that it is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. By the civil law such a will was rendered void, and it may be well doubted whether we have acted wisely in departing from its just and rational provisions in this respect; and it is well said by the court, in Crispell v. Dubois (4 Barb., 398), that, though this rule of the civil law has not been adopted in our courts, yet they do demand satisfactory proof in such cases that the party executing the will clearly understood and freely intended to make that disposition of his property, which the instrument purports to direct. The doctrine is well stated in Parke v. Ollatt (2 Phill., 323), that "where a person who prepares the instrument and conducts the execution of it, is himself an interested person, propriety and delicacy would infer that he should not conduct the transaction."

In this case, conceding that Mr. Parish had some mind, it must also be conceded that it was greatly enfeebled; and it is undeniable that he was very much in the power of those by whom he was surrounded, unable to communicate except by their aid and through their interpretation, and in answer to questions which they saw fit to make, and by assenting to, or dissenting from, such suggestions as were made to him. Mrs. Parish was for all purposes his only channel of communication, and his sole interpreter, and the only person from whom all suggestions fruitful of results came; and it follows, conceding she might not have been the actual scrivener, or even not the employer or principal of the scrivener, that the same rule should apply as in cases when the scribe is the chief beneficiary under the will. The reason of this rule would require that these codicils should be fortified and supported to the same extent, and in the same way, as if she had drawn them herself.

Having, as we think, distinctly and satisfactorily ascertained the principles of law which should govern courts in the determination of testamentary cases, and which we have been thus careful to announce as safeguards for the protection of the community, we now proceed to the application of those principles to the testimony in the present case. Such an examination must necessarily in this discussion be confined to its more salient parts. The testimony occupies three octavo volumes, and a brief reference to that portion of it deemed the most significant is all that can be done here.

We shall now regard this court for the purpose of such investigation, as sitting as the primary tribunal, before which the application may be considered as pending, to admit to probate the two codicils in controversy. If it shall be found that the testimony is of such a character that no doubt remains that the two papers propounded express the will of a free and capable testator, then the codicils must be admitted to probate. If, however, the conscience of the court, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the papers in question do contain the last will and testament of the deceased, the court is bound to pronounce its opinion that the instruments are not entitled to probate.

It is impossible, within any reasonable or practicable limits, to review in detail the mass of testimony taken in the present case.

A very large proportion of it is occupied with the opinions of many highly intelligent and respectable gentlemen, having more or less opportunities for observation of the mental vigor of Mr. Parish after his attack, and their conviction that he understood what was said to him, by signs and gestures, and in some instances by the use, as they understood him, of the monosyllables "yes" and "no," thereby communicating his thoughts and wishes to those around him. Opinions of witnesses, however respectable, can only have weight and value when accompanied with the facts upon which they are based, and, having the facts, it is for the jury or the tribunal called upon to scan and consider the testimony, to see if the conclusions and opinions of the witnesses are sustained by the facts detailed by them. Opinions without facts are of but little importance. ( Clarke v. Sawyer, 3 Sand. Ch., 351; Cilley v. Cilley, supra; De Witt v. Barley, 17 N.Y., 340.)

We shall advert only to such portions of the testimony as have impressed our minds as of peculiar significance, and have led us irresistibly to the conclusions at which we have arrived. Before doing this however, it is well to consider for a moment the condition in life, the associations, and social position of Mr. Parish previous to the attack in July, 1849. We have a full and minute account of his life from his youth upward. It seems to have been peculiarly blameless and free from reproach. The breath of scandal never tarnished his fair name, and his conduct seems to have been in the highest degree circumspect, and such as became a gentleman of the most fastidious tastes and refined associations. In 1829, occupying then a high social position, and having accumulated a fortune which was then deemed ample and large, he was married to Miss Susan Maria Delafield. She was an accomplished lady, moving in the highest social circles of the city, and of a family distinguished by the intellectual vigor of its members, and by the high professional position of her distinguished brothers. To this circle Mr. Parish was welcomed with cordiality and affection. It is proven in the case that her mother loved him as a son, and her brothers regarded him as a brother. For twenty years Mr. Parish lived and moved in this circle and with these associations, "sans peur et sans reproche." He gained upon the affections and the respect of his wife's family, and its members seem to have been his most intimate friends and constant associates; and their friendship and attachment to him were apparently never weakened, but greatly strengthened. His house was the abode of hospitality, and at his table and at his feasts were gathered the most refined, polite, and intellectual of New York society. Mr. Kernochan, his life-long associate and intimate friend, his almost daily companion from boyhood until the hour of his death, with better and fuller opportunities of knowing him than any other man, (except perhaps his brother Daniel), and most competent from his intelligence and acquaintance with men to form an accurate and reliable judgment, says of him, "he was the most placid and unexcitable man I ever knew, of great self-respect, and great command of temper." Dr. Delafield says, "he was of studious courtesy and propriety of demeanor." Col. Richard Delafield says, "his manners were mild, gentle, and unruffled." Mr. Henry Delafield, who knew him intimately, from residing part of every year in the same house with him for twenty years, says, "he was exceedingly affable and courteous." And Dr. Taylor, the eminent Rector of Grace Church, where Mr. Parish constantly worshiped for more than twenty years, and who was on terms of intimate association with him, says: "His conduct was marked most decidedly by great self-respect and strict observance of decorum, and, in his intercourse with others, great courtesy and affability of manner." This was the daily walk and carriage, and such the estimate of the gentlemanly bearing of Henry Parish, up to July 19, 1849.

How utterly changed did he become after that day, is conclusively established by the uncontradicted testimony of many witnesses. We shall only advert to a few of the most remarkable and striking incidents, indicating unmistakably the total transmutation, from that day, of his character and habits. The review is painful and would willingly be omitted. In the view we take of this case, it is quite controlling, and it cannot therefore be avoided. The facts narrated show the changed man, and the inferences to be drawn from them are conclusive.

In March, 1850, as related by Dr. Taylor, this scene occurred at Mr. Parish's house after he had administered the Communion to Mr. and Mrs. Parish and their attendant Mary Ann Green. As Dr. Taylor was going away, Mrs. Parish took out of her pocket three gold pieces of $5 each, and handed them to Mr. Parish to be given by him to Dr. Taylor. Then "Mr. Parish evinced strong displeasure by his looks and contemptuous mode of expression, frowning, and saying, 'yah, yah, yah,' shaking his head at Mrs. Parish, scolding in his way, and refusing to hand" Dr. Taylor the money. She smiled and said, "give it to the Doctor." He threw the money back to her, it fell on the floor — she picked it up and gave it to the Doctor, and he left.

The interview between Mr. Parish and Mr. Daniel Parish at the house in December, 1850, furnishes another striking illustration of the change in Mr. Parish's manners and character. The testimony clearly shows that the brothers Henry and Daniel had ever lived together on terms of more than ordinary fraternal intimacy. Daniel was the younger brother, and had, in early life, been taken from home by him, and associated with him in business, and had thus opened up to him his subsequent laudable career. We cannot see that any cloud had ever obscured their friendly regard for each other, and as their natures seem to have been peculiarly undemonstrative, we have but few evidences of outward manifestations of their interest in, or affection for each other, except as we gather them from circumstances. We cannot fail to see, however, underneath a calm and unruffled exterior, a deep current of warm affection for each other, and Henry manifested this feeling towards his brother Daniel on many marked occasions. His sympathy for his brother, at the period of his pecuniary losses, and the delicate and inoffensive way in which Henry contributed from his own means to repair them, may be cited as evidences of his warm feelings for and interest in Daniel and his family. We see no reliable evidence in the case, that any change was ever wrought in Mr. Henry Parish's mind towards his brother. The trifling incidents referred to as causes for the suggested change of sentiment, are wholly inadequate to produce such a result. It is incontrovertible that Mrs. Parish, for some cause, had certainly not the most friendly feelings towards Mr. Daniel Parish. If she had formed the designs attributed to her, it is not unnatural that she should have desired to exclude Mr. Daniel Parish from the society and house of her husband; that she should have received with distrust and suspicion his every act of omission or commission; and that she should have hoped and expected that her husband would have participated in and sympathized with her in her animosity to Mr. Daniel Parish. It is upon this hypothesis that we may credit the testimony of Quin, that, on the next day after Mr. Parish's attack, she gave orders to exclude from the house Daniel Parish and the members of his family. That such exclusion did actually take place is uncontradicted. No mention was made as to James Parish, and the reason may be that, as he lived in the country and was partially blind and not in the habit of visiting the city, it was supposed no effort would be made by him to see his brother, and any attempt to exclude him was uncalled for. It is certain that he did not visit his brother Henry, and whether his failure to do so was prompted by knowledge of the exclusion of his brother Daniel, and the natural inference that he would also be excluded, or from inability to travel, does not appear. There is no evidence in the case of any expression of dissatisfaction toward him by Mr. Henry Parish on account of such omission, or any exhibition of unfriendly feeling toward him or his family, if we except the wish said to have been expressed by Mr. Parish, as interpreted by Mrs. Parish to Mr. Lord, that he desired to revoke the legacies to the children of James.

In this place it may be well to remark upon the interviews, and the only ones, had by Mr. Daniel Parish with his brother after his attack. The first one was about the 20th of August, 1849, as near as it can be stated from the testimony; when, on calling at the house to inquire as to the condition of his brother, Quin, the waiter, let him in, having heard the doctor say that his brother was "very low, he was afraid he would do no good." Quin, thinking he would not live, told Mr. Daniel Parish, in disobedience of his instructions, "to go right up and see his brother now, that when he would call again he would not see him alive." Mr. Parish proceeded immediately to his brother's sick-room, and, as he was about entering, he met Mrs. Parish, who objected to his going in, saying "he was not in a condition to be seen." He went in, notwithstanding, and this first interview of the brothers would seem to have been of the most friendly character on the part of both. A servant was sent into the room to report to Mrs. Parish what Mr. Daniel Parish was doing there, and he saw him (Daniel) "having hold of his brother in the bed by his hand." There is no evidence that Mr. Henry Parish evinced any displeasure at this visit. When Mr. Daniel Parish left the house, Mrs. Parish gave instructions to Quin "to be particular not to let him in again." About the middle of October, 1849, Mr. Parish was very feeble, and Dr. Taylor thought it very probable that he would shortly die. On the 16th Mr. Daniel Parish called to see him, and was admitted by Mrs. Parish, and if he then saw his brother, which is left by the testimony in some doubt, this was the second interview. We have no statement of what occurred (if it took place), and only know it was short. This may be well supposed, as it was expected Mr. Parish would not long survive. On the 8th of January following Mr. Henry Parish was driven down to the office, where for many years he and his brother and their partners had transacted business, and then Daniel Parish came up to him, shook hands with him, and said, "How do you do, Henry?" There is no evidence on this occasion that Mr. Parish evinced any unfriendly or hostile feeling to his brother Daniel. Between this period and May 1, 1850 (from the testimony, the latter part of January), Henry Parish again visited the counting-house in Water street, and met there his brother Daniel. He came forward and shook hands with his brother Henry, and inquired after his health. There is no evidence of any unfriendly feeling exhibited on this occasion by Henry Parish to his brother. About the last of February, 1850, Henry Parish was severely attacked with a convulsion, and Dr. Delafield, his physician, deeming his condition alarming, and considering his recovery to be nearly hopeless, it would appear, without consulting Mrs. Parish, despatched a messenger immediately for his brother Daniel. What transpired on the occasion of this visit does not appear. Daniel Parish, on his return from Europe in November or December, 1850, calls on his brother Henry with his two daughters, was kindly received by him, and went with him into the drawing room. While there, Mrs. Parish came in, and soon evinced her displeasure at the presence there of Mr. Daniel Parish, and ordered him to leave the house. This is the last time Henry and Daniel ever met, and, so far from Henry exhibiting any unkind feeling toward Daniel in any of these interviews, it is shown that he evinced the utmost excitement and anger toward his wife for her apparent harsh and unkind treatment of him on the occasion of this last visit. The case is, therefore, without a scintilla of evidence that Henry Parish, on any occasion, gave expression to any hostility to his brother Daniel, or of any change of feeling toward him.

We resume the narration of acts and conduct of Mr. Henry Parish. At the interview at the house in the latter part of 1850, just referred to, Henry Parish manifestly thought that Mrs. Parish was treating his brother with rudeness and impropriety, if he had mind to comprehend what was transpiring; at any rate, he saw something was going on offensive to him; and that Mrs. Parish's manner to Daniel was unfriendly and harsh. If he could understand what was said, he heard her order his brother to leave her house, and saw her follow him down stairs, as if intending herself to see that he promptly obeyed her commands. At this Henry Parish became greatly excited, and the witness, his attendant at the time, says: "Mr. Henry Parish got quite outrageous in my hands. Mr. Parish had his crutch; he raised it with the intention of hitting Mrs. Parish, who stood in the front hall; just as he raised his crutch, I swung him round from the right side, and got him into the dining-room." It is not a little extraordinary that, if Henry Parish then entertained toward his brother Daniel the unfriendly and hostile sentiments now alleged and claimed, and if he heard and understood all that was transpiring, he should not have sought to inflict chastisement upon that brother whom, on this hypothesis, he must have greatly disliked, if not hated, and who had in his presence insulted his wife, rather than upon her, the advocate and avenger of his wrongs, and the object of contumely on his account.

Again, we have a striking illustration of Mr. Parish's condition, from the statement of Austin, the poulterer at Washington market. What transpired there is referred to in another connection, and need not be here detailed. Mr. Parish was sent almost daily, with an attendant, to a market in the vicinity of his residence, not, it would appear, for the purpose of making purchases, but to amuse him and occupy his time. He does not seem to have had an intelligent object in going, nor did Mrs. Parish or his attendant, or the persons at the market, pay much heed to what he did or was supposed to communicate. This attendant, in 1850 and 1851, in describing his daily habits, says: "Mr. Parish would take the game and put it to his mouth the same as he did his pants."

The extraordinary proceedings in the carriage, as detailed by the coachman, Clark, when he threatened the demolition of the carriage windows because he was not taken down town, and the noise and commotion created in the street, and which was quieted by the shallow and successful trick of Clark to deceive him, and make him believe he had been down town, when, in fact, he had only driven him a short distance and back, are quite inharmonious with any thing developed in his character prior to the attack. The melancholy exhibition at Buchanan's flower-garden, as detailed by Clark, shows the changed man, and the forgetfulness of the gentleman, and the habits of the imbecile. His inability to control the calls of nature is a marked and prominent fact in this case, and such inability has ever been regarded as a distinguishing evidence of the loss of mental power. On this occasion such absence of control was peculiarly offensive and improper, and no sense of shame, mortification, or of regret, seems to have been produced in him by the occurrence. Mrs. Parish was excited, and found fault with the attendants. They thought to justify themselves by throwing the whole blame on Mr. Parish, and he at length became excited also. Clark says: "He made noises and sounds both, but I disremember what they were. I wasn't looking him over my shoulder at all, but I heard him hollowing and bawling." As an evidence of the total insensibility of Mr. Parish to all the decencies and proprieties of life, a simple reference to his condition of nudity, in rushing into the presence of his wife and seeking her garments for his, and, in this condition, sinking in exhaustion from excitement on the floor, will suffice. He had to be raised from it by Mrs. Parish and the servants. His search for his garments, in the place appropriated for hers, occurred five or six times. (Test., vol. 1, fol. 1509.) The scenes which daily transpired, as detailed by Clark, one of his attendants, while Mr. Parish occupied the room on the ground-floor, fronting on Seventeenth street, are of the same general character. He says: "In the morning, when I would be dressing (meaning Mr. Parish), he wished to have the windows open, would sign to have the blinds and all open; he would look that way out, and I would say, 'It is wrong for you to expose yourself against the windows.' He would say then, 'Yanne, yanne, yanne,' raising his hand that it should open, shaking his head; the windows then couldn't be shut, Mrs. Parish insisting they should be kept shut. Mrs. Parish came several mornings to shut them herself. Mr. Parish would shake his head this way, and would not have it, raising his left hand and moving it toward the windows as if to have them opened, saying, 'Neay, neay, neay.' Then Mrs. Parish by-and-by came in again, and drew over the curtains behind Mr. Parish's back, to keep the people from looking in. Then Mr. Parish by-and-by turns round his head, and sees the curtains drawn, and has them opened again in the same way. Then Mrs. Parish comes and says to him, 'Mr. Parish, won't you keep them shut?' he then lifted up his hand and gave Mrs. Parish a drive, saying, 'Neay, neay, neay,' as if to put her away from him." (Test., vol. 1, fols. 1735-6.)

On a cold winter's night the following occurrence took place. The witness says Mr. Parish was sitting in the library with Mr. Delafield and Mrs. Parish. "He seemed to be very weary and unhappy in his mind, and I was sent for and took him by the arm, and went out into the front hall. He was determined apparently to go out, and I told Mrs. Parish; she came out into the hall with his hat, and put it on his head, and said, if he was going out he had better have his hat on. He raised his left hand and threw his hat right off his head in the hall, and we went out the front door, and Mrs. Parish closed both doors after us, and shut us out, as it was a very cold winter's night, and she did not wish to have the doors open. There had been some men working in front of the house during the daytime, and there was a very large hole about four and a half feet deep or thereabouts, to the right-hand side of the front door, and that is the very place to which Mr. Parish wanted to go. I catched hold of Mr. Parish by the collar of the coat, and told him I would not let him go one foot further. He held very much against me; I told him of the danger we both were in — falling into this hole. It was covered over with boards, and I was standing upon two of them at the time. I got Mr. Parish turned back to the front door, and rung the bell, and got Mr. Parish into the library. I then told Mrs. Parish, in the presence of Mr. Delafield, what had happened. I don't know that there was any answer." (Test., vol. 1, fols. 1530-2).

One other incident ought not in this connection to be omitted. It is detailed by Mr. Campbell, a witness in no way connected with any of the parties in these causes, and without bias or prejudice of any kind. It is the attempt of Mr. Parish to climb the leader in front of his own mansion, facing Union Square. It is detailed in vol. 3, fols. 1875-1882. Mr. Parish did not succeed in the enterprise, and but for the interference of Mrs. Parish and his nurse, who forcibly removed him into the house, the consequences to him might have been more serious. This was in 1852. He was compelled to abandon the effort by physical force, which he struggled in vain to resist.

It cannot be necessary to refer, in this connection, to the numerous eccentricities of Mr. Parish during the period of his mental weakness and obscurity intervening between the date of his attack and his death. Reference need only be made to the many instances when he was guilty of the indecorum and gross rudeness of assaults upon and threats to Mrs. Parish, a lady entitled to, and who had, on all occasions prior to his prostration, received from him the most marked and distinguished courtesy. These incidents are mentioned by Mr. Kernochan, vol. 1, fols. 1040-1043; Mr. Folsom, fol. 1152, 1153; Simmons, fol. 1702; Wingrove, fol. 1520; Dr. Taylor, fol. 3349; Clarke, fol. 1736; Case, fol. 1894; Brown, vol. 2, fol. 1449; Col. Delafield, fols. 1766-1668; Mr. Wiley, fol. 38; Henry Delafield, vol. 3, fol. 309.

And can this be the same gentleman of whom Col. Delafield says that, prior to July, 1849, he was mild, gentle, unruffled, yet decided in all matters to which he gave his personal attention? Vol. 2, fol. 1740, Mr. Kernochan, his friend and associate, says of him, in respect to the same period: "Mr. Parish was certainly a high-minded gentleman, and would never do any act unbecoming a gentleman: he had a great deal of self respect, and great command of temper. I never knew him to do anything under excitement." (Vol. 1, fol. 1069.) As these two witnesses describe Henry Parish, such, beyond all doubt and controversy, he was anterior to July 19th, 1849; and from the testimony already referred to, we see what the same individual was after that date and up to the period of his death. How entire and complete is the change! How diametrically opposite to the previous conduct of his whole life is that now exhibited! And the inquiry forces itself upon the mind: what cause has produced such results? Can such totally inconsistent and opposite characters be reconciled with the theory that the faculties, the mind and moral perceptions of Mr. Parish underwent no change, but were the same after July 19th, 1849, as they were before that day? That after that period his reason was unclouded, and that his intelligence was undimmed? That he understood all that was said to him, comprehended the relations of things, and was in the full possession of all his intellectual powers?

We confess ourselves wholly unable to assent to any such theory. The conviction on our mind is clear that these facts and circumstances show unerringly, that the attack of July 19th obliterated the mental powers, the moral perceptions, the refined and gentle susceptibilities of Henry Parish; that after that period he ceased to be the mild, intelligent and unruffled man he had been theretofore, and that thereafter he was not morally responsible for the unbecoming and ungentlemanly conduct he so frequently exhibited. He then ceased to be Henry Parish, and was no longer an accountable being.

We find much less difficulty in reconciling our minds to this view of the case than to adopt the theory of the proponents, that Mr. Parish, up to the period of his death, possessed an unclouded intellect, retaining its pristine vigor and activity, was conscious of all that was transpiring around him, and understood all that was said to him; comprehended the minute details of the complicated and important business transacted for seven years in his name, and often in his presence, and was capable of communicating and did communicate his thoughts and wishes to others. It is much easier for us to believe that those who, we doubt not, honestly think that Mr. Parish understood what was said to him, and that they comprehended the operations of his mind and the expression of his wishes, are mistaken in their suppositions, than to reconcile his actions after his attack with the fact that he was still in possession of all his mental faculties.

When the means of arriving at the knowledge whether Mr. Parish was understood or not are examined, it will be found that they were very imperfect, and very liable to misapprehension. It is to be observed also, that all who speak on this subject applied no test to determine the accuracy of their impressions. They saw Mr. Parish mainly when in apparent good physical health, and visited him under the impression and with the preconceived idea that he understood what was said to him, and they naturally construed the signs and gestures made by him as indications of intelligence, and responsive to suggestions made by them.

But the accustomed mode of conveying thought by speech was denied to Mr. Parish. Some of the witnesses think he made use of the words "Yes" and "No," and one or two other words; but the weight of the testimony greatly preponderates in favor of the position that, after his attack, he never uttered an intelligible word. This is the testimony of Mr. Kernochan, who saw him more frequently than any person other than members of his family. Mr. John Ward, whose intercourse with him was very frequent, says distinctly that he never heard him utter a distinct and intelligible word after his attack. He was therefore denied the usual manner of communicating his thoughts and wishes. What remained were signs and gestures, and the expressions of his face, to communicate with those around him. Some of the witnesses suppose that they obtained his meaning by the expression of his face. Now, it is to be remembered, that the only agents conveying such expressions are the mouth and eyes. Mr. Parish had no use whatever of the former organ for this purpose. His face was always peculiarly unimpressive and undemonstrative, but after his attacks, the muscles of his mouth became firm and rigid. His eyes afforded but little aid in this particular. He had nearly lost the sight of one of them, and the other was opaque by the operation of cataract, and both were generally covered by spectacles of great convexity. He could, therefore, neither speak nor use the muscles of his face to give expression to his thoughts, and the gestures made by him with the left hand and its fingers were irregular, unmeaning, and contradictory, and often conceded to be misunderstood.

With these imperfect and uncertain media for ascertaining the thoughts of Mr. Parish, it is doing no injustice to any one to assume that they have been mistaken in supposing that they correctly understood him. We more naturally and readily come to this result, because we find that all who had any intercourse with Mr. Parish, on many occasions, found great difficulty in understanding his wishes and thoughts, if they even understood them at all; and the instances are frequent and clearly established where he often made affirmative and negative motion of his head immediately succeeding each other, to the same question, leaving the inquirer in perplexity which he really intended. The testimony is conclusive that Mrs. Parish herself frequently acknowledged that she could not understand him, and there is some testimony tending to show that on some occasions at least she thought he did not at all understand what was said to him, and that, in her opinion, the effort would be useless to make him understand.

As an illustration: In the interview at the Washington market with Austin, a man well acquainted with Mr. Parish, and who had dealt with him for years, he said to Mrs. Parish, "I would like to see him (Mr. Parish, who was sitting in the carriage outside the market) — I will take him out something that he will like. I showed her the articles I was going to take out. She told me not to take the canvas-backs, but to take the red-heads, as he could not tell the difference: and woodcock I had; she said they were too high — to carry him some snipe, that would come cheaper. I took them to his carriage, and spoke to him. He looked at me after speaking to him two or three times. I held up in my hand the birds for him, to pick out what he wanted. He took his cane, and flurried it around and scared me. I stepped back from the carriage door. I then stepped up and tried to make him understand me, and I went into the market again. Mrs. Parish bought what she saw fit." It is not a little difficult to see, if Mr. Parish was in full possession of his mental faculties, why he could not tell the difference between canvas-back ducks and red-heads as well as Mrs. Parish. It is apparent from the testimony that Austin had selected canvas-backs to take out to Mr. Parish, and that, by Mrs. Parish's direction, they were changed for the red-heads. She must therefore be undoubtedly correct, if the views we entertain of Mr. Parish's mental condition be sound, in saying that Mr. Parish did not " understand the difference," for it is clear from Austin's testimony that he did not understand any thing about the object of the visit to the market, or what Austin meant by exhibiting game to him. It would seem, if he understood any thing about it, and had any idea on the subject, he supposed such exhibition was either to ridicule or insult him. When Mr. Parish went through the ceremony of going himself to the market, in the vicinity of his own house, Simmons, his attendant, says, "The butcher asked me what Mr. Parish wanted. I told the butcher what I heard Mrs. Parish tell the cook, and he would send it home." Wingrove, another attendant, says, "Mr. Parish would never point to any thing in the store that he wanted." Mr. Case, the butcher and keeper of the market, says, "Mr. Parish was brought to the market by his attendant, and he would sit him down in a chair; he never could tell when he was through; he would sit there till the waiter would take him away. Mrs. Parish told him (Case), that he must not send the articles Mr. Parish had indicated by motions and gestures he wanted, for Mr. Parish did not know what he wanted." This witness further said, he "never could find out rightly what Mr. Parish wanted."

Numerous other witnesses who have testified in this case, on both sides, say that on many occasions Mr. Parish could not be understood. Mr. Charles A. Davis says, "I have stopped my inquiries endeavoring to find out his meaning; Mrs. Parish failed to find it out." Folsom, long Mr. Parish's confidential clerk, says, "I failed to find out what he wanted." Wingrove, one of his attendants, says: "I failed to find out what he wanted, searching for his clothes, nor why he put his clothes and game to his mouth. Neither myself nor Mrs. Parish could find out where he wanted to drive; neither what part of the newspaper he wanted read. That Mrs. Parish often, after making repeated efforts to understand him, gave it up." Simmons, another of his attendants, says, "I could not ascertain his wishes from his motions, sounds, or gestures." James Clark, another attendant, says, "I and Mrs. Parish would spend an hour or two, and fail to get his meaning." Dr. Delafield, his physician, gives a long description of his attempts and failures to understand Mr. Parish. Rev. Dr. Taylor, when he proposed first to administer the communion to him, could not understand why he did not wish it done. Mr. Tileston, President of the Phœnix Bank, says, that Mrs. Parish stated to him, on the occasion of the interview between him and Mr. Parish, in her presence, that "she was entirely unable to convey or understand what Mr. Parish meant." This was in December, 1853. He adds, that he "could not understand him in any way." Dr. Wheaton, a medical man, and intimate friend of Mr. Parish, says, he "could not interpret at all his meaning, without aid from Mrs. Parish." Fisher, another of his attendants, says, "That in August, 1849, Mrs. Parish could not understand him, and Mr. Parish gave up in despair the effort to make her, and was in consequence troubled all day that she could not find out what he wanted. That he, Fisher, sometimes failed entirely to make out his meaning. Brown, an attendant, tried three days to find out his meaning, and failed many times to do so. Nichols, the carpenter, could not find out what he wanted done. Mr. Grinnell could not understand what he meant about investing money. Dr. Markoe, one of his physicians, says, "Two or three times I failed to get at his meaning, occasionally failed altogether." He also said, "Mr. Parish had no power to say he wanted to destroy a will; he had not the power to say any thing; could express no thought except by asking questions."

All the testimony shows that he could only indicate with his fingers and hand, or by sounds, that he wanted something, or that something was the matter, and which motions or sounds were construed by those around him as evidences of his wish to put a question, whereupon they began to suggest various topics, and when they thought they perceived that they had hit upon the subject in his mind they supposed he wished to inquire about, they put such questions as suggested themselves to them, and to which they supposed they had received affirmative or negative answers. If Mr. Parish had no power to express a wish to destroy a will, it follows he had none to create one, and the manifestation of his wishes depended entirely upon the interpreter, and the integrity of the interpretation.

Henry Delafield, who occupied the house with him, says, that as to ordinary affairs, he frequently failed to ascertain his meaning. Jones, the tailor, could not understand what he wanted as to his clothes, even with Mrs. Parish's aid. She could not understand him; he nodded his head, and immediately after changed to the shake of it. Mr. Gasquet, his old friend and partner, could not understand at all what he meant. Mr. Ogden, the Cashier of the Phœnix Bank, where Mr. Parish for years had been a director, and who knew him well, in an interview at the Bank with Mr. Parish, in Mrs. Parish's presence, said to her, "Mrs. Parish, I cannot understand him." He understood nothing from his motions; "they were unmeaning." This was in October, 1849. John Ward, long an intimate acquaintance, and with whom Mr. Parish transacted a large amount of business in Mrs. Parish's presence, from the period of his attack until his death, says, that he addressed himself generally to Mr. Parish, but he does not remember that Mr. Parish ever made any answer by sign or motion, until Mrs. Parish had spoken to him; and he emphatically says, that in all his negotiations with Mr. and Mrs. Parish, to the best of his recollection, he " never heard Mr. Parish utter a word after his attack." Mr. Parish's faithful and true friend, Mr. Kernochan, and who was almost his daily visitor during this long period of his affliction, in answer to the question, "Did you ever understand or attach any meaning to the motions of his hands, or the sounds accompanying them?" says, "I certainly never understood them; I attached no definite meaning to them of my own observation. There was never any distinct articulation in any case, not even of a single word."

It is thus seen that great difficulties and uncertainty, to say the least of it, attended any expression of the thoughts or wishes of Mr. Parish, and that a large number of those having business or intercourse with him, utterly failed to attach or obtain any meaning to his signs, sounds, motions, or gestures. The natural and obvious deductions to be made from all these facts and circumstances are, that Mr. Parish had no ideas to communicate, or if he had any, that the means of doing so, with certainty and beyond all cavil or doubt, were denied to him. If some, with the aid of an interpreter, and always the same, indulged the charitable thought that they correctly apprehended his wishes, it is clear that others, equally intelligent, with adequate and equal opportunities of judging, and with the same aids, utterly failed to comprehend him.

The facts testified to are of such a character, giving full and proper weight to all the evidence, regarding it in the most favorable light to the proponents, as to leave great doubt on the mind that Mr. Parish, after his attack, was any thing more than the creature of habit, the reflex of the opinions and wishes of others, the clay in the hands of the potter, to be moulded into any shape or form desired. His hearing was good; the sight of one of his eyes, although impaired, was not seriously affected, and he had the perfect use of his left hand and arm. Nothing was more natural, therefore, than that those who entertained the idea that he possessed intellect, would resort to the obvious facilities and aids to enable him to give it expression. The power of speech, it is manifest, was denied to him; if he possessed any, it was exercised most imperfectly, and with no practical advantage. This, the obvious and usual method of communicating thought, he had not. None could fail to know that, if Mr. Parish had thoughts, the great and controlling anxiety of his life would be to give them expression, and to manifest them to his friends. Independently of the social gratification attendant upon such successful effort, he had great interests to manage, a large property to look after, and the accumulation and management of which had been the absorbing object of his life. A large estate had accumulated and was accumulating, which, if he knew any thing, he must have known was taking a direction, as the proponents allege, hostile to his wishes, to those from whom he was alienated, and away from the cherished objects of his regard and affections. Every conceivable motive and consideration pressed upon him, therefore, to keep up intercourse with his family and friends, if the thing was possible. No man having the power thus to communicate, and having thoughts and wishes to express, thus circumstanced, would remain in a living grave for seven years, without making superhuman efforts to be understood by those around him. Those friends rightly assumed, therefore, that Mr. Parish would be most solicitous to maintain intercourse with them, if it were possible so to do. The first attempt, and the most obvious one, was to have Mr. Parish write with his left hand. He had the perfect use of it; could write well; had done it all his life. We all know from experience how simple this process is, and how easy of execution. We can see how effectual it would have been in enabling Mr. Parish to express his wishes, and keep up his intercourse with his friends, and retain the management and control of his affairs, and make such disposition of his estate as he then desired. This expedient, though effectually tried and persistently urged upon Mr. Parish, utterly failed of accomplishing any satisfactory result. One of the witnesses thinks that, on one occasion, he succeeded in writing the word "horse," and the same witness says he wrote several times the word "wills." The latter efforts were preserved, and are produced and made exhibits in the cause. An inspection of them will show that there is no propriety in interpreting them as "wills," or any other word. They are nothing but imperfect, unmeaning scrawls, such as any child might make who had strength to hold a pen. They unmistakably show that there was no mind to guide the hand, or, if there was any, not of sufficient force to control the will, and second its determinations. If Mr. Parish had any mind capable of operation and of forming conclusions, his faculty of hearing remaining unimpaired, it would have been the easiest thing imaginable for him to have written the word "Yes" in response to any question he desired to answer in the affirmative, and the word "No" to any he desired to answer in the negative. This could have been done with much less effort than was required to write the words "horse" and "wills."

This attempt to have Mr. Parish communicate by writing having proved fruitless, resort was had to block letters, a very simple and facile mode of communicating thought by those who are deprived of the natural use of doing so by speech. If he had any thoughts to communicate, he had thus at hand an easy, certain, and effective means of doing so with accuracy and beyond the peradventure of mistake. The slightest exertion only was required — no fatigue could ensue. This attempt also produced no results. Another effort was also made with the letters of the alphabet in another form, and it also was unsuccessful.

A further and different mode was suggested by some of his friends, which, if the theory of some of the witnesses for the proponents is correct, afforded a safe, sure, and easy method of communication. It was the use of a dictionary by Mr. Parish. This process had two advantages: it would have enabled him to suggest topics of inquiry, and insured intelligent and certain answers to the questions put to him. A moment's reflection will satisfy any mind that no process could have been devised, more certain and satisfactory than this, for holding intercourse with an intelligent mind, denied to it the power of giving expression to its emotions and thoughts in the form of speech. No results were obtained from this source, and the inference from the testimony is that no efforts were made to afford Mr. Parish the opportunity of trying this method of communicating his thoughts.

And this omission greatly strengthens the impression conveyed by the testimony, that he did not and could not read at all after his attack. It is true that he was seen to look at newspapers, accounts, ledgers, check-books, notes, c., but that his mind took in and comprehended what his visual organs discerned, the evidence in this case will not warrant us in assuming. It is natural to suppose that, if Mr. Parish could read, he would have desired himself to peruse these codicils, and they would have been placed before him for that purpose; and, on the assumption that he could, the inquiry presses upon us, Why were they not given to him for perusal? If it had been established that he could read intelligently, and it had appeared that these codicils had been read over by him, it would have furnished much more satisfactory evidence than any we now have, that they expressed his wishes. If he could read, and had intellect to understand what his eyes beheld, why is it that there is an entire absence of evidence that he was ever seen reading, with apparent understanding, a letter? of his ever having been seen, on any one occasion during his long confinement, with a book in his hand perusing it? Is it to be believed that, if Mr. Parish could read, and had a mind to comprehend what he read, that he would not, during these whole seven years, when he was almost entirely excluded from intercourse with the world, have once resorted to books for amusement and instruction? It is incredible. We all know that no greater solace is available to an invalid, and none more universally sought after. They are companions always at hand, of the most soothing, agreeable, and entertaining character; and it cannot be doubted that, if Mr. Parish could read, and had intellectual capacity sufficient to understand what he read, that books would have been his daily and constant companions.

These views press themselves on us with great force, if we concur in the opinion of Dr. Taylor that Mr. Parish, after his attack, became a devout and sincere Christian, and was anxiously and inquiringly seeking to make his peace with his Maker, whom he must have expected soon to meet. Where would an intelligent Christian sooner turn for advice, direction and consolation, than to the Bible? This book, we all know, is printed in type so that all, of any degree of vision, can peruse it. Nay, those totally deprived of sight are not precluded from resorting to it for comfort and direction. We have looked in vain through the testimony in this case to find any evidence that Mr. Parish ever read his Bible, that one was ever procured for him, or that any effort was ever made to induce him to peruse it, or that he ever indicated a wish to do so.

To what result does this review of the facts and circumstances in this case, adverted to and commented on, lead the mind? On a careful consideration of them all, with a most anxious desire to arrive at a just and correct conclusion, we are clearly of the opinion that the attack of Mr. Parish on the 19th of July, 1849, extinguished his intellectual powers, so obliterated and blotted out his mental faculties, that after that period he was not a man of sound mind and memory within the meaning and language of the statutes, and was therefore incompetent to make a will, and that the codicils of September, 1853, and of June, 1854, were not his will, and formed no part thereof.

We have endeavored to give just and due weight to the arguments and suggestions so eloquently and ably urged upon our consideration by the counsel for the proponents. Neither are we unmindful that, in coming to this conclusion, we differ with many witnesses of intelligence, who have expressed the opinion under oath that Mr. Parish, at the time he executed these codicils, understood their import and effect. With the highest respect for those gentlemen, our duty calls upon us to consider all the facts presented by the testimony, to scan and weigh their testimony as well as that of the other witnesses in the cause, and, after a careful and accurate examination of the testimony on both sides, to say whether the papers propounded should be admitted to probate. We have a clear conviction, and one which we have arrived at without hesitancy or doubt, that they ought not. We think that, in a case presenting so many obstacles on the part of the proponents, and which, we are compelled to say, have not been removed, the surrogate decided correctly in refusing to admit these codicils to probate.

We are impressed with the soundness of the rules of law, before adverted to, that it is much less material that those who seek to impeach a testamentary instrument, should not be able to explain certain things in their case, should be forced to admit that their argument is not in every part consistent with all the facts, than that they who seek to establish the will, should give no rational, consistent, or intelligible solution of those difficulties which encumber their suppositions, and obstruct the path towards the conclusion they would have us arrive at; that it is not the duty of the court to strain after probate, and especially to seek to establish a posterior will, made in conceded enfeebled health, unsustained by previous declarations of intention, over a prior will made in health, and with care and deliberation, when the provisions of the posterior will are in direct hostility and conflict with those of the prior one; that heirs and distributees may rest securely upon the statutes of descent and distributions, and that their rights are not to be taken from them unless by an instrument executed in conformity with the formalities prescribed by statute, and by a person authorized by it to make and execute such instrument; that it would be in violation of long and well-established principles, and an almost uniform and unbroken current of decision in England and in this country, to admit to probate testamentary papers, prepared and executed under the circumstances these were, by a man who was in apparent full physical health, and possessing nearly his natural strength, who could not or would not write, who could not or would not speak, who could not or would not use the letters of the alphabet, or even a dictionary, for the purpose of conveying his wishes, upon proof solely that they were supposed to express the testator's wishes, from signs, gestures, and motions made by him, and especially when it appeared that such signs, gestures, and motions were often contradictory, uncertain, frequently misunderstood, and often not comprehended at all.

It is not to be forgotten that, during the whole period intervening between the attack of Mr. Parish and his death, there is no evidence that he, by himself, ever performed a single business transaction, ever made a purchase or sale of property, or ever expended a single dollar, or was ever entrusted with one, although the owner of a million. These facts are instructive, as showing that he was treated and regarded by those around him as non compos, and his condition undoubtedly was that of utter, certain, and absolute dementia.

If, however, these views are stronger than the facts will warrant, there is another proposition which is undeniable, and that is, if, on due consideration of all the testimony and the arguments, the mind of the court is in equilibrio, then the proposed codicils must be pronounced against. In the present case, as already observed, there is a will free from all question and all controversy. It was made by the testator after peculiar deliberation, and certainly disposes of his property not unnaturally or inequitably. No change in the circumstances of the testator's family having occurred, and a condition of bodily and mental weakness having supervened, certainly well calculated to create grave doubts of the testator's soundness of mind, codicils are produced, claimed to be his last will and testament, revoking previous dispositions, and giving an entirely different direction to the great bulk of his estate, without any apparent or assigned cause. The language of Lord BROUGHAM in Panton v. Williams ( supra), is apposite and may well be followed:

"That when the question arises between one will and another of a prior date, the proof being upon the party propounding any testamentary writing, the course of administration directed by law is to prevail against him who cannot satisfy the Court of Probate that he has established a will; or the prior instrument which is liable to no doubt is to be established in preference to the posterior one which cannot be proved to speak the testator's intentions so as to leave the court in no doubt that it declares those intentions."

The argument has been much pressed upon us, that the concentration of the great mass of the testator's estate in Mrs. Parish is supported by several collateral circumstances, and that therefore the court should be less exacting in the quantum of proof to sustain such bequests, than it would demand when they were not thus supported. It is said that it might well be supposed that the testator would desire to keep up and have maintained his family establishment the same after his death as before. The answer to that argument is, that he had made most abundant provision for this in his will of 1842, by leaving to Mrs. Parish an income of about $23,000 annually, while the current expenses of both in his lifetime had never exceeded $10,000. He had, therefore, provided for her singly more than double the amount required annually for both.

It is also urged that the alienation of his feeling towards his brother Daniel afforded a sufficient reason for revoking his appointment as executor, and the legacy to him of $10,000, and the revocation of the residuary clause in the will of 1842 in favor of his brothers Daniel and James, and that this alienation is confirmed by the efforts made by him on two several and distinct occasions to annul the legacies to his unoffending nieces and nephews, the children of those brothers. It is believed that it has already been conclusively shown that there is no evidence in the case, tending to show any such alienation of affection on the part of Mr. Parish towards his brother Daniel, but on the contrary, it distinctly appears that in all the interviews between them after his attack, no evidences of such alienation were exhibited, but every thing was in harmony with their previous relations. But if it were so as to Daniel Parish, the cause assigned is wholly inadequate, for any such unfriendly feelings towards James Parish, as to withdraw from him or his children, or those of Daniel even, what had been secured to them with so much care and deliberation and natural propriety.

It is also claimed that it is manifest, from the framework of the original will, that the testator did not intend that his brothers should have any considerable portion of his estate. This argument has in part already been answered, and, in addition, it may be observed that the peculiar and careful language of the will is such that it conveyed to the residuary devisees all the property, real and personal, of the testator which he might own or be possessed of at the time of his death, not specifically given or disposed of by the will. He had disposed of $331,000 to his wife. This was absolutely hers, or subject to her disposal. He had specifically given property amounting to $60,000 to three young gentlemen, kinsmen and friends, and legacies in the aggregate to $290,000. On his return from Europe in 1844, having ascertained that two of the legatees, whose legacies amounted to $20,000, children of his brother James, had died, he called on Mr. Havens, the counsel who prepared his will, to ascertain among other things, what effect their deaths would have upon its provisions. It is not to be forgotten that Mr. Parish always kept a duplicate of his will with him, and it is not to be doubted that it was often referred to and its contents the subject of his frequent meditations. Mr. Havens correctly informed him that the death of any of the legatees in his lifetime, under age or without issue or an appointment, would lapse the legacies, and that they would then fall into the residuum of the estate, and pass to the residuary devisees. With this he was satisfied. Two other children of his brother James died before his attack, whereby the residuary fund was increased $40,000, and by reason of the reduction in the estimated value of his property made by the testator himself on the first of July, 1849, the apparent increase in his estate since 1842 had only been $165,857. Its real increase was in fact much more, as the Union Place property had cost him $112,000, and was actually then worth that, or more, but was estimated by him at only $60,000. On the first of July, 1849, the testator saw that his brothers would take under the will, the amount as estimated value of the residue,

In 1842, .................................... $36,879 Lapsed legacies, ............................ 40,000 Increase of estate, ......................... 165,857 Under-estimate of Union Place house, ........ 52,000 ________ Total, ............................. $294,736

which would be nearly $150,000 to each, and which might be enhanced, and obviously would be by other legacies falling in, and the natural increase of his estate. With these results clearly before him, he made no change in the framework of his will.

It is also urged that the codicils made by Mr. Parish after his attack were made to evince to Mrs. Parish his increased affection for her, and his grateful appreciation of her kind and assiduous attentions to him during his protracted illness. This argument has, we think, no force whatever, so far as it presents an inducement for the execution of the first codicil. That was prepared and signed within a few days after returning consciousness from the blow of July 19, and in regard to the other two codicils, the testimony does not contain any indications of an increase of affection on the part of Mr. Parish for his wife after his attack. On the contrary, if he was a conscious and responsible man, the inference would be that the affections of the husband had been much weakened, that he evinced no tender or growing regard for her, and had no grateful appreciation of her watchfulness and care of him. On the theory of his intelligence and testamentary capacity, his treatment of her was strange and unaccountable, and would lead us to expect that he would have sought to have reduced the provision which he once thought ample and munificent for her, rather than devolve upon her nearly the whole of his estate to the entire disherison of all those of his own blood, some of whom had the strongest claims upon his bounty and his affections.

Much stress also is laid upon the circumstances testified to by Mr. Ward in reference to the purchase of notes by Mr. and Mrs. Parish, and one inference is drawn, that in purchasing the notes Mr. Parish relied upon his own knowledge of the mercantile standing of the makers, and that the same was made upon his judgment solely. Mr. Ward's testimony will hardly bear that construction, and a moment's reflection will make it obvious that if Mr. Parish purchased notes upon the information he possessed of the mercantile standing of the makers, he must have done it very blindly. He had been excluded for years from intercourse with the mercantile world, and would necessarily know, if he knew any thing, but little of the changes and losses of business houses. We have too many instances of firms, having wealth and unbounded credit one week, plunged into hopeless insolvency the next, to place much reliance on the judgment formed on knowledge obtained in and previous to 1849, as to the responsibility of firms in 1854 and 1855. It is more simple and easy to determine the value of the securities of a corporation whose resources and property were matters of public notoriety, than the means of private individuals. Here, real and apparent are far from being the same. A careful examination of Mr. Ward's testimony will leave the impression that Mr. Parish never, except perhaps on two occasions, and then by nods of assent, made any answer to any suggestions from Mr. Ward until Mrs. Parish had spoken. It has been shown that very little reliance could be placed on Mr. Parish's motions of assent or dissent. There is nothing in the case to show that Mrs. Parish would have permitted important purchases to be made predicated upon them, unless she had been satisfied of their wisdom and propriety. In fact, it is incontrovertible that she placed no confidence in the manifestations of his wishes and opinions in trivial matters, and so frequently stated, and it is impossible, with this evidence before us, to believe that she acted upon any indications made by him in matters involving the disposition and safety of thousands of dollars.

We have not thought it necessary to discuss the learned and able medical opinions furnished on both sides to the court, for its perusal and consideration. We do not understand that the parties have agreed that they should be regarded as testimony in the case with the same effect as though the writers had been examined as witnesses. They are valuable disquisitions upon the subject treated, and evince the highest grade of professional talent and knowledge. While they have been instructive to the court, they cannot strictly be regarded as evidence in chief in the cause. Opinions, however respectable, and coming even from the most intelligent minds, are not the sources from which the judicial mind seeks enlightenment. The law, for wise purposes, has precluded it from relying on facts not communicated under the solemnity of an oath, and it is the duty of every tribunal called upon to pass on a question of fact, to confine its investigations to such facts as are verified in a legal manner. If it then fails in arriving at the truth, it will have done its whole duty, and the result must be attributed to the imperfections of our judicial system, and the inadequate tests which the mind is capable of applying to discover it. We have not, therefore, considered as evidence the mere opinions of these medical gentlemen, and we have accordingly examined their disquisitions in the same manner, and for the same object, that we would examine any medical treatises on the same subject. Their value consists mainly in the arguments and reasons they contain, as applicable to the facts developed in the present case, and we have so regarded them. They have been to us sources of great instruction, and are valuable contributions to the study of medical jurisprudence, and exhaust the medicolegal aspects of the intricate diseases of the brain arising from apoplexy, paralysis, and epilepsy.

In the consideration of cases like the present, in reviewing the findings of the surrogate on questions of fact, as well as his conclusions of law, we regard the matter as res nova with us. It is true we have not the living witnesses before us, but we have their testimony, taken with all the safeguards which the law affords, and we have all the facilities of arriving at the truth which the Court of Chancery or the ecclesiastical courts ever had. It certainly affords us gratification, then, on the careful examination of all the testimony in the case, aided by an extended discussion by able and learned counsel, and the mature consideration which has been given to the case, to have arrived at the same conclusion as that of the learned and intelligent surrogate who heard it in the first instance, and whose decision was affirmed by the Supreme Court. In the examination of the peculiar features of the present controversy we have also been assisted and gratified by the profound and elaborate preparation, as well as by the learned and interesting discussions of the eminent counsel who have addressed the court. It is one of those cases in reference to which Mr. Justice ERSKINE wisely and justly said, "that the protection of the law is in no cases more needed than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially where that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration." These views lead to the establishment of the will of 1842, unaffected by and in nowise impaired by the codicils of September, 1853, and June, 1854.

We are of the opinion that the judgments in each of the two above-entitled causes should be affirmed without cost to either party in the first, but with costs in the second cause.

We are of opinion that it was the duty of the executors to prosecute the question on these codicils to a final determination in the court of last resort; and we presume that, in the settlement of their accounts before the surrogate, they will be allowed the costs of litigation.

DENIO, WRIGHT, ALLEN and SMITH, Js., concurred in this conclusion. They also gave a general assent to the opinion, which is subject to such qualification as may follow from their assent to certain legal propositions asserted by GOULD, J., which are noted at the end of his opinion. DENIO, J., did not concur in the disapproval of the decision of Stewart v. Lispenard, so far as relates to the law as enunciated in that case, but agreed with the observations of GOULD, J., on that subject.

GOULD, J., (dissenting.)

The great mass of evidence before us; the large number of elaborate medical disquisitions which are not evidence, and the extended and profound arguments of counsel, would naturally create the impression that this case is one involving not merely intricate questions of law, but complicated matters of fact, depending on scientific principles, difficult of application, and that any satisfactory opinion upon it must include a particular analysis of all the voluminous papers. A very protracted and careful examination of all the evidence in the case, with reference as well to the medical essays as to the briefs, has satisfied me that but two questions of fact, and as many questions of law, are really before us; although some questions upon the rules of evidence, and the weight of evidence of different kinds, require consideration, in order to arrive at a proper decision on the facts.

We have before us, on appeal, the decision of the surrogate of the city and county of New York, which is stated by himself, to be: 1. That the original will (of Sept. 1842) is valid; neither altered or revoked, except so far as it may be so expressly, by the subsequent codicils; 2. That Henry Parish, by his attack (of paralysis) in July, 1849, was not permanently deprived of testamentary capacity, though his faculties were enfeebled and impaired, and his power of mental manifestation was greatly affected. Having established these facts, he proceeds to say, (in the 3d place,) in cases of this kind it becomes necessary to satisfy the court, beyond the mere " factum" of the instrument, that its provisions were the free expression of the will of the deceased. This (latter) position would seem to be a conclusion of law. If so, it must mean that, although Mr. Parish had testamentary capacity (as "not being deprived of" it), and executed a will in all respects according to the law; yet, that is not, in all cases, sufficient. Or, if the finding be not intended as a conclusion of law, it must mean that where testamentary capacity exists, and where the instrument proposed is shown to have been executed with all the legal requisites, by a person having such capacity, the court is bound to go further, and look in detail at the specific provisions of the will, and ascertain whether they are, in fact, the free expression of the will of the deceased.

From this position (of law or fact), the surrogate arrived at the determination, that the codicil of September, 1849, was well executed and valid; and that the two latter codicils (of Sept., 1853, and June, 1854), were not well executed, and were void. So that the will and the first codicil were admitted to probate, and the last two codicils were not.

The third ground so taken, if taken as a conclusion of law, would hardly seem correct; since the statute calls for no more than a disposing mind, and the specified formalities. And the true question for a court is, had the deceased capacity to make any will, not had he capacity to make such a will. The tenor of the will is to be considered only so far as it may tend to show a want of capacity, because the will itself is absurd, or inapplicable to the state of the property disposed of, or the state of the testator's family and relations. It may thus become legitimate evidence upon questions of fact relating to the capacity of the deceased, or relating to fraud practised, or undue influence exercised upon him. But the law is fully satisfied when its expressed requirements are fully complied with.

For the present, reserving the secondary questions of fraud and undue influence, we are to consider the primary point of testamentary capacity. Where this does not exist, there is no mind to be influenced, either duly or unduly.

To decide advisedly, whether in fact Mr. Parish had testamentary capacity at the several dates named to us, it is requisite first, to define as accurately as may be, wherein testamentary capacity consists; and it is further necessary to state what evidence is legitimate upon that point of fact. In determining the standard of legal capacity to make a will, we are to bear in mind, that it is the universal maxim of the law, that almost any fixed rule (on any matter of legal action), is better than to leave the matter a subject of uncertain and changeable discretion. That, although it is hardly possible to establish a rule under which there will not occur "hard cases," yet intolerable mischief would attend the absence of a rule, which would be substantially the absence of law. Then, the judge would determine in every case, and the decision would depend on his affections, his patience, his discretion; and nothing but confusion would arise in society. (1 Ridgway's Cases in Parliament, 551.)

In this country, where individual rights know no restraint which is not imposed as necessary to the general good, there is no policy of the law tending to prevent a man's doing "what he will with his own." And the statute of wills, enabling a man to direct how his property shall go after his death, is but supplementary to his absolute control over it during his life. We acknowledge no right to it (as against his will), in any one, whether before or after his death. Our statute of descents takes effect only when the owner of real estate dies "without devising it" (1 R.S., p. 751, § 1); and that of distributions, only when a person "dies intestate." (2 R.S., p. 96, § 75.) And the statute of wills is to be construed beneficially and liberally towards the owner of property; to impose on him no restraint which the statute does not plainly impose, and to give to him the benefit of every possible intention of the act.

The statute is (as to realty), "all persons, except idiots, persons of unsound mind, married women," c., may devise, c. (2 R.S., p. 56, § 1.) As to personalty, it is, "every person of sound mind and memory" may make a will. (2 R.S., p. 60, § 22.) As explanatory of the language of the act, we may cite the statute as to alienating lands (1 R.S., 719): every person capable of holding land, "except idiots, persons of unsound mind and infants," may alien the same. And prior to the Revised Statutes, the statute of wills excepted "idiots, lunatics, and persons of insane mind." Now, "unsound mind," and the converse, "of sound mind and memory," as cited above, being used in reference to legal capacity for the execution of legal instruments, must, until the contrary intent clearly appear, bear the same construction in all the sections cited; and that must be the construction which the law has for centuries given them; they having become terms so well known to the law, as to have a fixed legal meaning.

Thus, Littleton (§ 405), as rendered by Coke, makes "of non-sane memory," " non compos mentis," and "not of sound memory," convertible terms. And Coke, in his note, adds, "many times (as here it appeareth), the Latin word explaineth the true sense, and calleth him not amens demens, c., for non compos mentis is most sure and legal." And he proceeds to define one non compos mentis (aside from natural idiots, lunatics, and drunken men), as one that "by sickness, grief, or other accident, wholly loseth his memory and understanding." Lord Chancellor HARDWICKE ( Ex parte Bamsby, 3 Atk., 171,) says that insanæ mentis, non compos mentis, and of unsound mind, amount to the same thing, adding: "and I shall desire that they still continue so, or else it will introduce great uncertainty and confusion, as these words have a determinate signification." (Pp. 172, 173.)

Now, upon this question of competency (independently of the element of fraud, or that of undue influence), there seems to be no great diversity in the decisions of our own courts. They proceed upon the ground, that a person non compos mentis cannot make any legal instrument (will or deed), however simple the document may be. And, on the other hand, that one who is compos mentis (no matter whether of strong or feeble intellect), may make any instrument, however complex it may be. Swinburne on Wills (part 2, § 4), says: though an idiot or natural fool should make a will (apparently) very wise, it would not be therefore valid. Does not the converse necessarily follow? no matter how (apparently) foolish or complicated the will, if the testator were compos mentis, it is not, therefore, void. That is to say, the nature of the will does not make the man either competent or incompetent. And so far as Dr. LUSHINGTON ( Stutts v. Schaeffle, 16 Jur., 909), varies from this rule, in saying that a testator's "capacity must be considered with reference to the act done, whether he was equal to, and capable of, the act in question;" it will be found that the cases which he calls "questions of capacity, proportionate to any given act," are not merely the most difficult of all questions; but that they are, to human tribunals, impossible of solution, and they would inevitably come within the citation made above, and be decided according to "the affections, the patience, and the discretion" of each particular judge.

In Jackson v. King (4 Cow., 207), the question was that of the competency of the grantor of a deed; and the ruling was, that the law recognized no incompetency but that of idiots, lunatics and persons non compos mentis; giving of the latter the description already cited from Coke, Littleton. The decision further explains incapacity as applicable to "not a partial, but an entire, loss of the understanding;" and holds that the common law has drawn no discriminating line, by which to determine how great must be the imbecility of mind to render a contract void, or how much intellect must remain to uphold it. In 21 Wendell, 142, a deed was held valid because "no part of the evidence went far enough to show a total want of understanding." In the case of Stewart v. Lispenard (26 Wend., 255), the ruling of the principle was fully in accordance with the prior cases, that every person who is not an idiot, a lunatic, or a person non compos mentis, is competent to make a will. The application of this rule to the facts of that case it is not appropriate for us here to consider. Nor need we inquire whether that case goes further than what we state as the rule. It is enough for our purpose that it should, as it certainly does, go as far as the prior cases. And it will hardly answer to cite, as the law of that case, the opinion of the Chancellor, which the decision reversed. In Blanchard v. Nestle (3 Denio, 37) the whole length of the ruling in Stewart v. Lispenard was approved. And (in a note to the same page) Osterhout v. Shoemaker holds a deed valid, on the ruling that "our law does not distinguish between different degrees of intelligence. It does not deny to a man of very feeble mind the right to make contracts and manage his own affairs. In the absence of fraud, proof of mere imbecility of mind in the grantor, however great it may be, will not avoid his deed; there must be a total want of understanding." The latest decision, that upon the will of Richard Ustick, in this court (decided in December, 1861, not yet published), adapts its forms of expression to the case, as there presented, but certainly does not profess to differ from the prior cases. In saying that Ustick had a certain degree of capacity, which "is all that is essential to legal competency in a testator," it does not say that our established rule, as to legal competency, is not correct. And it considers a man competent, of whom it can be truly said, "I cannot say he was of unsound mind, but his mind was weakened;" which accords with the line of prior decisions.

These decisions we are, in substance, asked to overrule (after a lapse of nearly forty years since the first one, Jackson v. King), and to hold that, although Mr. Parish was certainly compos mentis (this is the argument as to the law, as separated from the fact of total incompetency, which is claimed), yet the court must be satisfied, beyond the mere legal execution of the will, that its provisions are the free expression of his will, to hold that though having legal capacity, speaking by his will is not sufficient; the proponents must do something undefined, which the statute has not required.

Were it necessary, in this court, to go beyond the decisions of our own State, we should find among various cases, many of which are of all shades of difference from ours, some which are substantially like ours. Thus, in 7 Sergeant Rawle (Pa.), 90, as to making a will, it is said "there is no standard, by which the understanding is to be weighed, but one; has the party such a portion of understanding as would enable him to do any binding act?" In Krime v. Krime ( 9 Conn., 104), had he an understanding of the nature of the business he was engaged in; a recollection of the property he meant to dispose of, and of the persons to whom he meant to convey it? In Harrison v. Rowan (3 Wn. C.C.R., 58), a testator's capacity to dispose of his property by will may be perfect, and yet very inadequate to the management of other business; as to make contracts for the purchase or sale of property. It is not necessary that he should comprehend the will's provisions, in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed; the disposition of his property in its simple forms. (See, also, 3 P. Williams, 129; 1 Ridgway's Cases in Parliament, 532, c.)

As to the burden of proof, it is claimed by the contestants, that the proponents shall, on their part, make out affirmatively that the deceased was of sound mind; and that, in a case where the positive testimony of witnesses produced is balanced, the will must be declared invalid. The words of our statute (2 R.S., p. 58, § 14 [10]) — "if it shall appear upon the proof taken that such will was duly executed, that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint," the will shall be ordered proved, c., — have been deemed to countenance this doctrine. A first reading might leave this impression; but further consideration would probably show that no rule of evidence is affected by this statute; since, that the testator was not under restraint is, by this act, as much required to "appear upon the proof taken," as any other requisite to full competency and due execution. The proper construction of that statute would seem to be this: That if, upon the whole proofs, considered according to the rules of evidence governing legal tribunals, such facts shall fairly appear, the will shall be established; for no one would doubt that if restraint were claimed as a ground for avoiding the will, that must be affirmatively proved by the contestants.

If this view of the statute be sound, we are left to the general rules of evidence, upon the question of insanity. And as to those rules, there can be little doubt that a man is, in law, a "reasonable being," until the contrary is proved. That sanity pertaining to his natural state, being one of his essential and inherent attributes, the party who asserts that a freak of nature, or the accession of disease, has deprived him of that attribute, or changed that state, takes the affirmative of an issue of fact, with all the burdens of an affirmative. Insanity, or a diseased, unnatural mind, is not a mere negative of sanity. It is an actual, positive mental state, and admits of quite as direct and positive proof as could sanity. (47 Eng. Com. Law R., 134, 135; 1 Metcalf R., 500; 5 Johns. R., 159.)

In this State, we are not without direct authority on this point, and that, as concerning a will, and under a statute equivalent to our present statute. Our old statute of wills (embodied and re-enacted, 1 R.S., p. 305, § 6) was, "if, upon the proofs, it shall appear that such will was duly executed, and that the testator at the time when, c., was of full age and of sound mind and memory and not under any restraint" the will should be recorded. Under that statute (which was enacted in 1801, see 1 Kent Radcliff's Laws of N.Y., p. 178, § 6), the case of Jackson v. Van Duzen was decided, (5 John., 144.) At page 158 the opinion of the court, given by VAN NESS, J., says: "In all cases where the act of a party is sought to be avoided, on the ground of his mental imbecility, the proof of the fact lies upon him who alleges it, and until the contrary appears, sanity is to be presumed," (citing a number of cases.) The precise point was there at issue, on the charge to the jury.

Jackson v. King (4 Cow., 207), though arising upon the question of competency to make a deed, contains (at p. 216), a full recognition of the soundness of Judge VAN NESS' ruling on this point. Phillips' Evidence (Edwards' ed. of 1859, vol. 3, p. 605, chap. 18), says of the attempt to impeach the validity of a will, on account of an alleged incapacity of mind in the testator: "The burden of proof rests upon the party attempting to invalidate what, on its face, purports to be a legal act." (See, also, 1 Peters' Cir. C.R., 163; 3 Wn. C.C.R., 582; 23 Penn., 275; 10 N. Hamp., 515; 2 Green's Ch. R., 280.)

With such guides for our further progress we are prepared to examine the evidence upon the points, or facts, to be proved, and thereby to determine how far the claims of either party are established. A part of the printed matter submitted to us, and that a considerable one, in volume, will, however, be found not to require very minute examination.

The medical disquisitions of men, learned and eminent in that profession, are, no doubt, interesting as matters of general information, and even as the arguments of medical counsel. And they (including the reply of one of these counsel) are good illustrations of the zeal and positiveness with which "doctors disagree," upon subjects of which all human knowledge is imperfect, and which will continue to be shrouded in mystery until we "see face to face, and know even as also we are known." But these essays are not, in any sense, evidence, and they are not, legitimately, in this case, since they profess to state a great number of facts for the information of the court, yet (unlike all legal ways in which courts get facts) they are not taken by examination and cross-examination in court, and are not under oath anywhere. They are, from the manner in which they are obtained, open to the charge of an inevitable bias; they show such on their face, and they are not in the form, or of the tenor, that the evidence even of doctors should be. Personal or professional eminence does not constitute, either or all of them, a court or a jury, and, therefore, they are not to give a decision in this case.

It is true, that, in order to throw all possible light on the mental condition of parties, who, or whose acts, are called into court, great latitude of testimony has been allowed. And where there has been no competent medical observer of the facts (and even where there has been such, as supplementary) the opinions of professional experts, based upon the testimony of other witnesses, as to the facts, have been introduced. The experience of courts has, however, not found the latter to be the safest kind of testimony. It is generally asked (by counsel) and frequently given, as if it were to be conclusive, and to leave to the jury nothing to do but to concur. Even where a physician founds his opinion (as to any one's state of mind) on his own observation, you give his opinions no such authority. You examine him in detail (as a witness) as to the particulars which he saw, and how, or why, they, as indications of diseased intellect, constitute a basis for his opinion. And both by his own evidence and manner, as well as by calling other experts, as to his reasons, in detail, you are able to apply a test to his opinions, general and particular. Thus it is left to the court or jury, to say of his (as they, and they only, are entitled to say of all) testimony, whether his opinions have been formed or given honestly or dishonestly, or under a bias which disqualifies him; whether they present him to the court in a light to be, or not to be, relied on; and also, whether, if both formed and given ever so fairly, he is competent to form trustworthy opinions.

As to the form in which his opinion is to be asked or given under the most favorable circumstances, where he is shown to be conversant with the particular disease inquired of, and where the person inquired about is in court and the expert sees him during the whole trial, and hears all the testimony, he (the medical witness) cannot be asked his general opinion ( i.e., his conclusion from all the evidence) as to the state of the party's mind at the time of doing the act. He should speak as to particular facts, as symptoms of a particular diseased condition, and how far such symptoms are usual, probable, or considered sure, indications of that condition. Thus presented, his opinion becomes definite, and you then can apply to it the test of a direct and explicit cross-examination. (See 47 Eng. Com. Law R., 129, note.)

In no event should any opinion as to matter of fact (no matter how high his professional standing, who gives it, or how honest he may be, or how apparently intelligent the opinion) be produced or received as anything but evidence, and that only in the way that other evidence is, if we are to preserve even the appearance of a trial, whether by court or jury.

Avoiding, then, as far as may be, general or scientific discussion as to the symptoms and probabilities, let us proceed to examine the evidence as to what was the testator's condition at the several material dates, subsequent to the attack of paralysis, in July, 1849. And in giving the dates, it will be of use to specify what was done at each date, premising them all by a statement of the general tenor of the original will, and of those respects in which that was modified by the different codicils.

The original will of 1842 (conceded by all to be valid) contains a number of specific devises of legacies to different relatives, and gives to his wife his (then) dwelling-house, and a variety of other property, real and personal, amounting in all to between one-third and one-half of his whole estate, which was then valued at between $600,000 and $700,000. It constituted Daniel Parish one of the executors, and gave to each executor a legacy of $10,000, and it had a residuary clause in favor of his two brothers, Daniel and James, by which the two would share equally a residue of about $50,000.

August 29, 1849 (forty-one days after his attack of paralysis, which was on the 19th of July), he made the first codicil, thereby devising to his wife his new and very valuable residence on Union Square, and another valuable piece of real estate. On the 17th of December, 1849, he re-executed this codicil.

Four years after making that codicil (September 15, 1853,) he makes a second codicil, giving to his wife additional personal property, to the amount of $350,000 (more than one-half of the then unbequeathed residue), and giving $50,000 to different charitable institutions. By this codicil he revoked the appointment of his brother Daniel as one of his executors, and revoked the $10,000 legacy to him, as such.

Nine months thereafter, June 15, 1854, he made the third codicil, thereby giving to his wife, in case she should survive him, the whole residue of his estate, and revoking, in case she so survived him, the residuary clause of the will of 1842. The entire estate was then about $1,400,000.

The first codicil is not now before us. And before proceeding to examine the direct testimony as to the execution of the last two codicils, both of which were drawn by Mr. Daniel Lord, and their execution witnessed by him, it is due to his character and position to say that, whether or not (in reference to the question of undue influence or control) the maxim se scripsit hæredem applies to Mrs. Parish (and that will be duly considered in its appropriate place), he, as a witness, stands in no such light.

All honorable lawyers, all whom the profession and the courts should not spurn from among them, understand that the one who is called to draw a will is the agent and the advisor of the testator and of him only. And if the one so called intentionally, even by the least indirection, mislead the feeble or pervert the intention of his client, especially if he himself perform the whole act, to do which he is conscious that the ostensible testator is not competent, no terms are too severe for his baseness.

The first duty of one who assumes to act professionally on such an occasion, is to ascertain to his entire satisfaction that the testator has understanding sufficient to know what is the act about to be done, and how he wishes it to be done, and that he can in some way make manifest his wishes and understand whether or not they are complied with. He is then to take care that he knows what those wishes are, and then to comply with them; he is then to let the testator know, carefully and deliberately and fully, the contents of the will as drawn, and to see that it be both clearly understood and entirely assented to; then, and not till then, may he, in the proper discharge of his duty, see that it be executed with the formalities which the statute requires.

Such Mr. Lord undoubtedly knew to be his duty, as very distinctly appears from the manner and the substance of his testimony.

To proceed with the second codicil, executed Sept. 15th, 1853, the direct evidence is given by Mr. Daniel Lord and Mr. Charles A. Davis. To find out how this was to be drawn Mr. Lord had five several interviews, on five different days, from Sept. 6th to Sept. 13th, at all of which he understood Mr. Parish in his attempts to call attention and procure suggestions: Mr. Parish expressing plainly, by his assent, when the suggestions met his wishes, and by his dissent as plainly showing when the suggestions did not reach what he wanted. For the purposes of this codicil Mr. Parish had before him, and appeared to understand, a statement of the items of all his property; of all the items disposed of by his will and the former codicil, with a valuation of each item of real and personal estate. Mr. Lord says: "I had no doubt, and I have not any, of his entire capacity to understand what he was doing and the effect of it. I was quite gratified at the better condition of his bodily health and the intelligence with which he acted." On his cross-examination he says: Mr. Parish assented to each item that was put in, and dissented from some proposed ones, which were thereupon omitted; and that the assent was distinct and unmistakable; and that the reading, prior to execution (with Mr. Davis holding one of the copies and following the reading), was clear, distinct and deliberate, and assented to.

Mr. Charles A. Davis, the other witness to this codicil, was an old intimate friend of Mr. Parish, and was in the habit of visiting him frequently (whenever Mr. Parish was in the city), from the autumn after his attack, until a week before his death. Of Mr. Parish's general condition, this witness says, "he gave indications of clear comprehension of matters he did comprehend, and when he did not comprehend, he gave clear indications that he was not understood, that his inquiries were not understood; that they had not reached the subject he was inquiring about." He says the subjects which seemed most to interest Mr. Parish, had relation to property, its sales and values. "He always gave evidence to me of unimpaired mind, but an incapacity of expressing by articulate sounds what he exactly desired, unless a question was put, calling for the answer, yes, or no." This witness proves the careful, clear, distinct reading of this codicil to Mr. Parish, before execution, and his deliberate and plain assent to the same, and the due and formal execution of the paper.

As to the third codicil, executed June 15, 1854, the direct evidence is given by Mr. Daniel Lord, and Mr. John Ward. Mr. Lord says, that it was directed and approved by Mr. Parish, and duly executed, and that, at that time, Mr. Parish's "mental capacity was perfect for making a codicil of this kind. He fully understood it, and fully agreed to it." Mr. Ward testifies to the reading and execution by Mr. Parish's nodding assent to the papers, and to different questions as to its execution, put by Mr. Lord. Mr. Ward subsequently testified to his having had, in 1854, transactions (in selling notes) with Mr. Parish, in which he, at the time, understood Mr. Parish to take part, and to assent to the purchase of the notes, and the rate of purchase. His acts show his opinion as to Mr. Parish's capacity, but as an opinion, it was not asked by either side.

This gives us all the proof there is in the case of what, at the several times of executing these two codicils, Mr. Parish did, and of what he actually understood. There is a great deal of proof, more or less direct, and more or less intelligent and trustworthy, as to his general state of mind, and what he could understand, and what he could not; what other persons could, or could not understand him; and a great many independent facts relating to his doings, his appearance, and his habits, are also in evidence. It is impossible here to do more than select such as seem most important.

The undoubted facts, as to his condition, are: that on the 19th day of July, 1849, he was attacked, in a counting-room in Wall street, with paralysis, not of the severest type, and was removed to his own house; that he became conscious in a short time, and rather rapidly recovered from some of the effects of the attack, but that his right side was never restored to use in any great degree; his right leg was of partial use, his right arm of none; the right side of his face was affected so slightly that a person who did not know his condition would not have perceived that it differed from its former state; his organs of speech were, and continued almost wholly paralyzed. To some persons, his "no" and "yes" were quite distinct; to others, they were about as distinct as a good part of the (commonly) half-articulated mumbled syllables of the language; while to some, they were, as articulate sounds, unintelligible, and to others, they were entirely unintelligible, unmeaning. He was, by most persons, understood to nod in token of assent or affirmation, and to shake his head (in the usual way) for dissent or negation. He had a habit of extending and raising his left hand and arm, and some of his fingers, with an accompanying inarticulate and irregular sound, which act and sound some persons understood as making inquiry, or as suggesting a desire or wish, which, then, was attempted to be ascertained by guesses at his meaning; the guesses being continued if he, by his negative sign, showed that his wish had not been appreciated or hit; and the guesses being stopped when he, by his affirmative sign, showed that his object had been attained. His sight remained as good as it had been prior to the attack, and his hearing was quite acute. His face was never particularly expressive, but it continued, after his attack, about as much so as it was before. His general physical condition was good, with a moderate degree of strength. His left arm and hand, never much affected, were so restored that they apparently remained in nearly their former condition, he having the free and effective use of them for ordinary purposes, — with them helping himself to his food and drink as well as usual, or nearly so. He could not, or would not, at any rate he did not, ever learn to write with his left hand, to the extent of one intelligible or legible word, either on a black board (allowing that one was tried), or on a slate, or with a lead pencil upon paper. A child's alphabet on a card (or cards), in capitals of over an inch in length, was once placed on a table before him, but he did not use the letters to spell any word, and brushed them at once off the table. He thus remained, without any means of suggesting any ideas of his own, (unless by pointing at a visible object), except his said method of inquiry; then relying on the quickness and intelligence of others, to find out the subject he was seeking for.

Upon this general state of facts, the contestants argue, that his failure to establish, in any way, some means of directly communicating his ideas to those about him, when there are so many ways, which (they insist) are easy, obvious, almost natural, is, of itself, sufficient evidence that he lacked the mental capacity to learn, or practice either of those methods. On the other hand, the proponents claim that he voluntarily refused to adopt those methods, from which he revolted as childish, while as to others, (writing in any way,) the failure of his first faltering attempts discouraged him, and he gave them up in despair. And, indeed, some of the witnesses testify to plain indications of this latter feeling. If we are to resort to opinions, perhaps these opinions upon what the witnesses saw are as valuable as other opinions upon what the givers thereof did not see. Perhaps, taking both sides of this argument (as above stated), there can be no better illustration of the dangers and difficulties, with which we shall be surrounded, when we venture upon scientific arguments and opinions, as to what might be, instead of confining ourselves to the evidence of what was. One intelligent and honest witness, testifying that, in a given matter, he was understood and answered, may safely defy all the learned treatises that can ever be written to show that he could not be. Fact is above theory; as the scholastic argument against the possibility of motion, was effectually answered by moving.

To proceed: The evidence of the attesting witnesses has been given; and it will hardly be found, on careful reading, to have been really weakened by cross-examinations. There remains to be applied to it, the test of any other and inconsistent facts which are in evidence, as well as the opinions, one way and the other, of the many witnesses who saw and visited Mr. Parish.

Mr. Joseph Kernochan, an old and intimate friend of Mr. Parish — his partner for many years — closely connected in business with both Henry and Daniel Parish — is much relied on, upon the part of the contestants. He testifies to seeing the testator very frequently and very familiarly, after his paralysis as before. That, from his observation of Mr. Parish, from 1849 to his death, he did "not think he knew much;" "when a person neither writes, nor speaks, nor does much, it is difficult to judge; I don't think he had much mind." He says, also, that on being requested, a few days after the attack, to take a general power of attorney from Mr. Parish, he hesitated, and asked Drs. Johnson and Markoe as to Mr. Parish's capacity to do business. On their saying that his having such capacity was very doubtful, he declined to take the power. However, on a cross-examination, he says that one reason for so declining was that he thought he would have to manage generally the property and affairs, and "he declined undertaking a great deal of work for no pay:" (a sound reason, but one not having much reference to Mr. Parish's mental capacity.) He says he interpreted the nod of the head affirmatively, and the shake as a negative; but "within his hearing" there was never any distinct articulation, but "a sound always very much alike;" which might very well be, as he testifies that his own "hearing has been very imperfect for eighteen or twenty years." His estimate of Mr. Parish's powers does not seem to have manifested itself to the family, as, on his return to the city after the execution of the first codicil (he having been absent when it was executed), Mrs. Parish told him it was made, and in whose presence, and its contents. Yet he suggested no question of inability, and no test to ascertain it. He was in the habit of talking to Mr. Parish of the current news, of the commercial intelligence, of the rise and fall of the stock and bond market, and of the rate of interest. He says: "If I knew anything I thought he would like to hear, I would mention it to him, without expecting any answer;" and "I think his hearing was very good, from his appearing to notice anything that was said in his hearing." In January, 1850, he asked Mr. Parish if he wished the annual balance-sheet of his property; and was answered affirmatively. And in the spring of that year he advised Mr. Parish to give to Mr. Conry a power of attorney to sell some city bank stock in New Orleans; and when the power was executed, he sent it to Mr. Conry. In the same spring (1850), Mr. Kernochan advised Mr. Parish to give a deed (join in a deed) of some partnership lands in New Orleans; and received "a nod, which he inferred to be assent." He informed Daniel Parish that he had so advised, and that Henry had assented; and he understood (as was the fact), that the deed was executed by Henry Parish (and the others). He applied to Henry for, and received, two or three satisfaction-pieces of mortgages, executed by Mr. Parish with a mark, with one of the Delafields as witness. In view of these acts, his thinking Mr. Parish "had not much mind" will hardly establish incompetency to make a will, or raise a doubt of the competency.

Mr. Folsom, for many years book-keeper of H. D. Parish and of Mr. Henry Parish's individual business, testifies that Mr. Parish did not appear to respond intelligently or consistently to his questions as to the custody of his tin box of valuable papers, or as to the keeping of his will. Yet in this same interview as to the will, he asked Mr. Parish if he wished to pay him (Folsom) for his services; and receiving an affirmative reply, he suggested amounts: $1,000; assented to: $1,500; assented to: $2,000; an indefinite reply. He continued by asking if Mr. P. wished a balance standing against him (Folsom) on the book canceled; to which he does not give the reply; but he entered on the book, opposite this item, "canceled by services;" and he continued to do the business. On one occasion, upon Mrs. Parish's finding fault with Folsom's conduct, he turned to Mr. Parish and asked, "Are you not perfectly satisfied with what I have done?" and Mr. Parish "put his hand up" (which Folsom took), "and bowed his head." And in April, 1851, Folsom requested Mr. Parish to execute a satisfaction-piece of a mortgage, and offered to witness the execution, and to swear to the signature, to save Mr. P. the trouble of acknowledging it. There is no doubt that he testifies fully to thinking Mr. Parish not of sound mind; and that he narrates interviews and incidents that would seem to justify his opinion. But the medium through which he saw, appears to have been favorable to that impression; and his own course of action (as above) seems inconsistent with the expressed opinion. His letters (admissible to show his bias) give full proof that, from an early day after the paralysis, he had a decided pique against Mrs. Parish, and a decided feeling for the opposite side; and his course was plainly that of a decided partisan, whose opinion is of little importance, and whose statement of facts is entitled to little more consideration than is his opinion. The bias is too plain and too strong.

The testimony of the nurses and servants and some traders, and that of some gentlemen whose knowledge was slight, closes this part of the contestants' case. The main tendency of the evidence of the nurses and servants is to show that Mr. Parish did not utter distinctly "yes" or "no;" and that the sounds he did utter had not, in their opinion, a constant nature or meaning. They testify, also, to some acts, which would not be done by a person of sane mind, who had the ordinary means of manifesting his wishes. But there is little in these things to weigh against the statements of intelligent men, that Mr. Parish did show good intellectual capacity, clearly and certainly.

Dr. Edward Delafield (on the part of the proponents), testifies at considerable length, and is closely cross-examined, with a result as favorable to his testimony as would ordinarily be found in the case of fair, intelligent witnesses. His being a brother of Mrs. Parish would necessarily create a bias in her favor; but, with due allowance for that, his testimony has great weight. His answer to one question has so much practical good sense, and is so free from any professional pretension, that it is worth citing in full. He was asked, "What are the symptoms by which you determine that the mind or intellect has been affected by this disease (paralysis)?" He answered, "Not by any physical symptoms; but the point is ascertained by simple investigation of the condition of the mind itself, by presenting to it, in various ways, objects requiring intelligence." And as to the fact that this witness so determined in regard to the condition of Mr. Parish's mind, he says: "My ordinary intercourse with him gave me the evidence I wanted, so decidedly as to make no special experiment necessary" to ascertain whether the mind was affected. Had the case been gotten up, and the testimony manufactured, care would have been taken to present to us a sufficiency of "special experiments," with very satisfactory results.

Mr. Wiley testifies to a course of business transactions (he being one of Mr. Parish's former partners, and their interests being then unsettled), which he could not have conducted honestly unless he thought Mr. Parish capable of doing business. He consulted him about a sale of Texas lands, to which Mr. Parish assented; and the sale was made. He testifies that Mr. Parish's mind appeared to be well regulated as to business he was familiar with, or had been so when in good health.

Dr. Abram Dubois gives evidence of facts to show that Mr. Parish understood him; and states as his opinion, founded on his observation, that Mr. Parish's "mind appeared to be clear and sound."

Dr. Wilkes testifies to facts, during his attendance on Mr. Parish for an affection of the eyes; and says, that, from his observation, he thinks Mr. P.'s mind was clear, and capable of transacting ordinary business. To this witness (among others) was addressed, by the contestants, this question: "Supposing it true that Mr. Parish knew very well how to read and write, before the attack; that, during an illness of six years' duration, he was unable to say anything more than a simple negative and affirmative; and that he had lead pencil and paper, slate and pencil, blackboard and chalk, and such block-letters as I have described (each letter of the alphabet, of large size, on a separate block), put before him; and, though urged to it, never succeeded in making a word, or communicating any idea in this way: would you still think that his mind was clear, and that he was capable of transacting the ordinary avocations of life?" He answered, "That would depend, in some degree, on the manner in which the experiments were made, and the duration of the experiments, and a variety of concomitant circumstances. But I drew my opinion of the clearness of his mind, c., from actual observation; seeing him in person; addressing questions directly to him; and being satisfied of his correct and intelligent answers." This answer not being satisfactory, the question was repeated, and he answered: "If I was allowed to spend three hours in the society of a person, and addressed questions to him, and received intelligent answers, I would, in spite of any opinion as to these experiments, believe he was capable of transacting ordinary business." (This whole question is here stated, because the contestants lay great stress on its statement of points.)

Mr. Bryson, cashier of the Phenix Bank, says that in August, 1853, he advised with Mr. Parish as to the transfer (for purposes of reörganizing) of his stock in that bank, and received his assent by a distinct "yes;" that Mr. Parish made his mark to the transfer without any assistance, and in the proper place, without its being pointed out to him. This witness says that, so far as his observation extended, Mr. Parish was fully capable of transacting business. His narration of the transfer is fully corroborated by Mr. Dunning, a clerk in the bank, called to witness the transaction.

Dr. Taylor and Dr. Wheaton speak in similar terms of the fact that Mr. Parish's countenance, after the attack, had as much intelligence and expression as it ever had; and they are decided in saying that it appeared to them that he was fully aware of his condition, and had a very clear perception of what was going on around him.

Luther Bradish says that, from his observation, Mr. Parish was capable of assenting to, or dissenting from, any matter proposed to him: his expressions of affirmation, and of negation, were very strong, very marked, very decided, generally; indicating intelligence, and judgment or decision.

Mr. Henry Whitaker testifies with decided intelligence. He speaks of Mr. Ephraim Holbrook's (witness to first codicil) conversations with Mr. Parish, varying from half an hour to an hour in length each; generally on business matters, the money market, prices of stocks, c.; and says that Mr. Parish appeared to pay peculiar attention to these observations, more so than to general conversation; and from his observation he gives his opinion that Mr. P.'s mind was that of a person competent to understand and to transact business; but his peculiar position was such, that it was necessary for him to transact that business through the medium of another person. To a question of purport similar to the one above set forth (as asked of Dr. Wilkes), this witness says, "I must respectfully decline giving an opinion on a state of facts which has not come within my personal knowledge or observation." Upon a repetition of the question, and an answer being insisted on, he says, "Assuming all these facts, I still retain my opinion that Mr. Parish was able to understand business, and to transact it through the medium of others, as I have before answered."

Mr. Henry H. Ward was the partner of John Ward (the subscribing witness to the third codicil), and was the person who conducted most of the sales of notes to Mr. Parish in 1854. He says that, in those transactions, he always supposed Mr. Parish understood him, or he would not have transacted business with him: he considered he was doing business with Mr. Parish; and that, from those transactions, he considered him capable of attending to his business, and a close man in money matters.

Mr. Grinnell's testimony is very worthy of note, not merely as to opinion, but as to facts; the narrative of which is as natural as it is clear.

Dr. Markoe's testimony is important, in itself, and for its collateral bearing on Mr. Parish's failure to acquire, or practice, any accurate mode of communicating his ideas. This witness experimented with the application of the galvanic current upon Mr. Parish, to restore the power of speech; and he says Mr. Parish appeared to be " extremely disappointed at the failure of our attempt, and finally refused to have it done any more. The trials were short, as a few minutes would suffice to discourage him, so that he would not go on." This witness gives, also, a narration of the successive efforts towards using the right arm and the right leg; the latter of which succeeded, and the former did not. From his observation, his opinion is that Mr. Parish's mind, from the fall of 1849 to his death (with the exception of the last two weeks), was sound. The exception is here noted, because, in the argument, it was claimed to be Dr. Markoe's statement that, during these two weeks, the mind was unsound; whereas he subsequently states that he made the exception because he did not see Mr. Parish at all in those two weeks.

The general truth, that some persons, (paralytic, or not,) have been able to write with their left hands, has very little bearing on the case; as a great many persons, who are neither paralytic nor otherwise disabled, and who have the full use of their right hand, can still write very legibly with their left; which some others cannot do at all. Mr. Parish did not, and for some reason or other, most certainly could not. But unless we can find out more about the actual muscular and nervous power of that left arm, there will be no way of determining that inability of mind had anything to do with inability of hand.

There are other witnesses; but their testimony would not be considered as materially varying the case, from what has already been stated. The very decided preponderance of the evidence that is founded on observation is in favor of clear and undoubted testamentary capacity; certainly nothing shows him non compos mentis. That is not established by proof.

As there is nothing complicated, or difficult, in the purport of either of these two codicils, there is no reason for saying (even were it material,) that by either there is, in that view, any doubt thrown upon the proof that the testator fully comprehended the acts he was doing.

There remains for consideration the other question of fact: Was either, or were both, of these codicils obtained by the undue influence of Mrs. Parish? I use the term, undue influence, not in the sense of fraud (as by deceiving the testator), but as signifying a controlling influence, which did not leave him, in this respect, a free agent. If, in effect, she wrote her will, it should not be held valid as his.

Unfortunately, a strong pecuniary motive is frequently found too strong for most other human motives to contend with; and the difficulty of resisting great temptation of this sort is universally acknowledged. Where the way to wealth lies through the comparatively easy road of acting upon the feeble mind and the feeble body, by attentions on the one hand, and by importunities on the other; where, for a long time, the opportunities for using such appliances are continued, and the chances for interference therewith are slight, and at rare intervals; it is cause rather for regret than for surprise, when we find that the means have been used, and the result attained. Yet, then, the law is not the less bound to apply to the transaction its own rules; and to declare only such instruments to be binding, as combine the full, free volition of the maker, with his intelligent comprehension of the act.

In regard to this part of the contestants' case, there can be no doubt that the burden of proof is upon them. It is an affirmative issue on their part; and to be by them made out by preponderating evidence. That evidence may, of course, be either direct or circumstantial; whichever they are able to produce. But, of some kind of evidence, there must be sufficient to establish the fact. For this purpose, it is entirely legitimate to consider the position of the testator; his family relations; the condition and amount of his property; the nature of his will, and of the codicils; the manner in which they apportion his property; and how far that manner is consistent with, or varies from, the ideas he is known to have entertained when in health.

The first codicil was executed before it was really ascertained what would be the result of his disease; whether life would be long continued, or suddenly cut short by recurring attacks; and the making of it seems to have been the originating cause of many, perhaps of all the difficulties, which have brought the affairs of this estate into the courts. It was, perhaps, natural enough, that the fact that such a codicil had been made for the benefit of Mrs. Parish, should give to Mr. Parish's brothers and sisters an impression that she was but commencing, and that promptly, a course of grasping, which would end in entirely depriving them of any benefit from his large estate. And that they had such an impression, seems to have been at once shown to Mrs. Parish, certainly injudiciously, and in a way to irritate her. Had such feelings been suppressed by them, while they kept on in a course of merely such increased attention as the condition of the invalid not only warranted, but called for, they would have been in a situation to judge for themselves of his state, bodily and mental; and to have such observations made by others, as would have satisfied themselves, and enabled them to make full proof. At the same time, Mrs. Parish, not being treated as if suspected, would have been less likely to do anything unfair: certainly she would have had no cause (which she could have called an apology) for being vindictive.

Mr. Folsom's conduct, (as to its probable effect on her), even granting that it sprang from the best of motives, was very ill-judged; and she could hardly be expected to suppose that his course was not fully understood and approved, even if not instigated, by Mr. Daniel Parish. That it was not so, is nothing to our present purpose. It appeared so; and she, no doubt, believed it to be so; and she would naturally act on that belief. When Mr. Folsom refused to let her have the box containing her husband's papers, or to have his will, he did what was as offensive to her as anything could be. He thereby said, plainly and explicitly, that she was not to be trusted; that he supposed her capable of almost any degree of baseness; of making away with the property of her husband, and its vouchers, and of turning to an improper account her knowledge of the contents of his will, or even of destroying it. It hardly required a confirmation from his letters (in evidence), to make any one sure of his feelings. And he took good care not to have any such impression effaced from her mind, by any act or omission of his. Nor was there any conduct, on the part of Mr. Daniel Parish, to change her opinion. The spirit of contention seems to have been early roused, and to have been ameliorated by no attempts at concession; and if it worked out its natural results, neither party should be disappointed. Generally, the beginning of strife does not consider where it is to end; and in its progress, a great many things are done, which, at the beginning, would have startled either party. Mrs. Parish, insulted and defied, may well have been a very different woman, from what Mrs. Parish, treated as a lady, would have been.

After the opposing parties had thus stood in open or ill-concealed hostility for four years, the second codicil was made. Any estrangement between Daniel Parish and his brother was then an enforced one — enforced by Mrs. Parish. During this period a large amount of property had been transferred from the name of Mr. Parish to that of his wife; and in that process a large number of business transactions had been carried on with Mr. Parish's concurrence.

For this whole period, though he saw many of his friends and received from them the current information of the day, and manifested an interest in business matters, and was considered as understanding and being close in money matters, the general medium of all his knowledge of subjects, which were not brought up in the way of common conversation, was his wife. Other persons, finding by his actions and the sounds he uttered, that he was wishing something, sometimes made attempts to ascertain what he wished; and occasionally they succeeded. But, so far as we are informed, she was, with few exceptions, the only one who really or frequently attained the point of actually understanding him on any subject, which was as it were suggested by him, in his indirect mode.

In the discharge of her very arduous duties, in attention to his wants and watching over his health, she had necessarily acquired an influence to which his state of sound health was a stranger. His daily and hourly dependence upon her for the watchfulness and care that looked to every comfort, had grown into a habit. She, in effect, stood between him and the rest of the world, the sole means of intelligent general communication. In most matters he had no motive for resisting her influence; in some his diseased bodily condition rendered her necessarily imperative to preserve him from injury; and the constant recurrence for years of this influence and of his obedience to it, must inevitably have rendered that influence one of predominating power. It is in proof that his natural firmness and perseverance were so far affected by his disease, that he was easily discouraged from continuing his attempts to recover his speech. And it is but natural that his firmness to resist importunity and control should have shared the same change. The whole evidence of the case places him in a position where an enfeebled intellect, though far from losing its intelligence and its capacity to do ordinary business, may well be presumed unequal to resisting reiterated importunities from one in her relative position. It would seem plain that she could have exercised an influence in regard to this codicil, which would not leave to him the exercise of his own free will.

Are there any circumstances in this case to show that she did so? Or does it appear that, having the power, she gained a victory over her naturally excited feelings, and magnanimously forbore to use it?

The whole burden of this codicil is for her benefit. Supposing that it was made under her control, se scripsit hæredem; nor upon this supposition would Mr. Lord's presence, and the fact that Mr. Parish assented intelligently and deliberately and in detail to the provisions of the instrument, relieve her from that position. For the influence was easily exercised (when once its subject had been brought to submit to it), and in a way not at all suspicious; a way not likely to be observed by one who had no idea of its existence. And the very fact that he knew himself to be above suspicion, and did not think of being the instrument of another's practices, would render him unsuspecting and unlikely to be looking for any such practices.

It has been said that this codicil is wholly for her benefit. It is true that the sum of $50,000 is given to different charities; but, on the supposition that she made the codicil, and considering that the sum of $10,000 was saved to the estate by cutting off the legacy to Daniel Parish as one of the executors, those bequests constitute nothing more than a decent covering of the general purpose, so that the making at that time of any codicil should appear to be founded on something besides a great benefit to her.

Again, it was entirely natural that she should wish Daniel Parish not to be continued an executor, as he was deemed her especial adversary, and she had forbidden him the house. To exclude him from that office was more likely to gratify her excited feelings, than were even the larger benefits secured to herself. As far as her wishes were concerned, the codicil is consistently framed to further them.

If another codicil be found, made after the lapse of a few months, carrying out the same general purpose, that fact may fairly be considered as concurring with and giving weight to the prior facts. And thus we find that in the course of nine months the third codicil is made, for the sole purpose of revoking the residuary clause of his original will, and of giving the residue (then very large) to his wife, instead of his brothers, Daniel and James.

This is a brief codicil, of very plain and explicit purpose, very easily understood; and it appears that he did understand it and assented to it. He further attempted to do what Mr. Lord's sense of justice induced him to prevent — deprive his brothers' children of the benefits of the legacies and devises in their favor, which are contained in the original will. His doing this was (in some way, though Mr. Lord does not recollect that it was said broadly and directly) suggested by Mrs. Parish. It must have been so, as Mr. Lord could not have suggested what he so decidedly disapproved; and Mr. Parish was unable to suggest it, unless upon being directly inquired of. Upon the point we are now considering (control), we are to view this codicil as if it did revoke those legacies and devises. Since then it did not, was not according to the expressed intent of the testator. Though suggested by the same authority that made the codicil, the will of Mr. Lord kept it out of the instrument; to Mr. Lord's credit, not to any one's else.

So considered, it is a codicil cutting the testator off from the remembrances of the past, severing him from all connection with the future of his own name and of his race, of his near and certainly once dear blood relations, for the purpose not merely of giving to his wife, a lady quite past middle age, the means of retaining her own elevated position in society, with every appliance of elegance and luxury, but of lavishing upon her wealth beyond her power to use — wealth that must be during her life a constantly accumulating burden, and at her death must go to her collateral relatives, who for it would remember her, not him. And it may be further noted that of her relatives those who were most intimate with him were the twin brothers, gentlemen of about his own age, and bachelors, who could but convey it further from his affections.

If it be answered that he had become estranged from his kindred, it is proper to ask how and why. It was not prior to 1849, for there is nothing of an earlier date that deserves to be considered on that subject. And after his attack, what adequate cause therefor was given to him? The difficulty with his wife was not of so grave a nature as to call for all these serious consequences, worked out by a purpose which gained strength with years of weakness. To her it might have been a festering sore, an apology to herself for a spirit which failed to show itself noble by forgiving. But it was not sufficient ground for his making successive codicils to carry out her will instead of his own. We may not judge her for being so far human. But we may apply the rules of law to her acts and to his.

If it be found that for such a cause, or for any or with any intent, she, having the absolute power so to do, arbitrarily secluded him from the society of these relatives, and that such seclusion was naturally followed by a weaning of his affections from them, and the result is an entire change of all the purposes in their favor, which were expressed in a well-considered will, made while he was in full health, it may well be held that such a course, carried out with one whose helplessness rendered him utterly unable to manifest to others his wish as being contrary to hers, or to obtain such wish as against her will — that such a course was but a part of a well-adjusted and carefully managed train of controlling influence, the whole of which has reference to and is connected with the final result, all combining to make him her instrument to work out her ends.

Direct evidence of her control in these matters — of her actual exercise of undue influence in procuring her will to be executed by him — could hardly be expected. The means of keeping the influence out of sight were too many, and of too easy application. But when such is the array of circumstances; when such a result is attained without any more substantial, apparent cause, we are justified in saying, from the evidence, that the only cause to be inferred, which is in the least degree adequate to produce the result, is a long-continued, persistent, overpowering influence to which his condition rendered him peculiarly subject, and which she was as peculiarly in a position to exercise.

Such a disposition of property we are not bound to sustain. We ought to say, that, as matter of fact, the last two codicils were obtained by the controlling influence of Mrs. Parish, unduly exercised, and that, in regard to them, the decision of the Supreme Court, confirming that of the surrogate, should be affirmed.

It must not be supposed that this question of undue influence (or control) is to be approached or considered in any but the most careful and deliberate manner. The relation of husband and wife is too sacred in its nature, too closely intertwined with all the highest interests of social civilized life, to allow us to bring down their motives and actions to the standard that would exist between mere parties to a contract, or even to that of any other of the nearest relations. We are to bear in mind their mutual duty to love and to cherish, in sickness and in health, and the many records of noble devotion which attest how well, in helplessness and weakness, through watchings and through weariness, woman has proved herself the solace and succor of him to whom, in his hour of strength, she clung for support.

The relation is not within the class that is ordinarily open to suspicion as to its probable or actual influence on the mind of a testator. A wife has a right to be first in influence with her husband. Any other doctrine would forget

— "the great vow, Which did incorporate and make them one,"

and would leave her a wife in name, but with limited and abridged attributes. The more truly that relation is engrossing, the stronger should be, and will be, the influence of one with the other; and the companion of years, the sharer of affliction, the soother of sorrow, the one trusted and unwavering, is to be upheld in exercising, what she cannot but obtain and keep, greater influence, and better, than that of all the world besides.

But, in dealing with the business of the world, we shall be compelled to acknowledge the sad truth that even this relation may not be proof against the intrusion of improper motives; that its purity may be tainted by the malign passions and influences from which so few are wholly exempt. The suggestions of evil passions may be listened to until they effect an evil purpose. So that every case in which the question of undue influence, or of control, is raised, is to be carefully examined on its own facts; and upon these, and not upon what we wish to be true, or what ought to be true, the decision must be founded. And while we enter on the investigation with the principle that the wife's great influence is legitimate and not to be suspected, yet we may find that even a wife has been misled by the worse part of her nature. And while sympathizing with her trials and acknowledging the force of the circumstances to which she yielded, we may be obliged to see and to say that she did yield, and that the law has set bounds beyond which even a wife's influence cannot be allowed to go.

DENIO, WRIGHT, ALLEN and SMITH, Js., concurred in these propositions of GOULD, J.:

In law, the only standard as to mental capacity in all who are not idiots or lunatics is found in the fact whether the testator was compos mentis or non compos mentis, as those terms are used in their fixed legal meaning.

Such being the rule, the question in every case is, had the testator, as compos mentis, capacity to make a will; not, had he capacity to make the will produced. If compos mentis, he can make any will, however complicated: if non compos mentis, he can make no will — not the simplest.

At common law, and under our statutes, the legal presumption is, that every man is compos mentis; and the burden of proof that he is non compos mentis rests on the party who alleges that an unnatural condition of mind existed in the testator. He who sets up the fact that the testator was non compos mentis, must prove it.

The opinions on that subject of medical men, as well actual observers as experts, are mere evidence, and are to be produced in court, and under oath, as other evidence is.

SELDEN, Ch. J., delivered an opinion, in which all the judges concurred, so far as it relates to the appeals of Ann Parish and Mrs. Sherman. As to the rest, it is a dissenting opinion. He said:

This case, with its voluminous proofs, its extended medical arguments and elaborate briefs, has swollen to such a size that it is quite impossible for the court, in an opinion of reasonable length, to take a complete and comprehensive view of all the various aspects in which it is presented. I shall attempt no more than barely to group a few of its prominent features in as brief a space as possible, selecting such points as, while they may not appear to others as the most striking and important, seem nevertheless to me to be not only pertinent but entirely decisive of the case.

Were we at liberty to entertain, at the outset, a wish as to the conclusion to which we are ultimately to arrive, it would undoubtedly be that, although we might find that the codicils were invalid, we might also find that the will itself was revoked, and that Henry Parish died intestate. This result, while it would give to the widow a very bountiful provision during her life, and a large estate to be transmitted to her relatives upon her death, would, at the same time, place the brothers and sisters of Mr. Parish upon a footing of equality as to the residue.

But, notwithstanding the very ingenious argument of the counsel for the sisters of Mr. Parish and a natural inclination to give to that argument its fullest force, I have been unable to see how it can with propriety be held that the will was revoked. Admitting the soundness of the argument that testamentary capacity may be divided into the power to conceive ideas and the power to express them, that the latter is as essential to the competency of the testator as the former, and that a person may well be capable of expressing the simple desire to revoke a will and yet quite incapable of adequately communicating his wishes in regard to the complex provisions of a new will, still it can hardly help the counsel's case.

The argument applies solely to express and not at all to implied revocations. The only revocations here are those contained in the second and third codicils of the legacy to Daniel, and of the residuary clause in favor of Daniel and James Parish. Now, conceding that in a case where a testator, apparently intelligent, but whose power of communicating his ideas was limited, had in proper form revoked a previous will, and then by a subsequent and distinct act had made another will, it would be possible to hold the revocation valid, on the ground that the intention to revoke was clear, and the second will invalid, on the ground that it did not sufficiently appear that its provisions were in accordance with the real wishes of the testator; still the doctrine cannot, I apprehend, apply to a case where the revocation and the new provisions are contained in the same instrument, and are part and parcel of the same transaction; for the very plain reason that it would be impossible in such a case to say that the testator would have wished to revoke the former will, except in connection with the new disposition made of the estate. The codicils cannot, therefore, be held valid as to the revocations which they contain, and void for want of testamentary capacity as to the residue.

The revocations, whether total or partial, in this case, then, if any, must be implied. Without examining the question whether the circumstances relied upon by the counsel would amount to an implied revocation at the common law, it seems to me that our statute (2 R.S., p. 64, § 43, et seq.), presents an insurmountable obstacle to the establishment of such a revocation here. The notes of the revisors, upon those sections, show conclusively that it was their intention to preclude all implied revocations except such as were expressly recognized. They say, in terms, that the provisions contained in the sections referred to, "it is believed, dispose of the whole doctrine of implied revocations." The effect of these provisions was considered by this court, in the case of Langdon v. Astor's Executors ( 16 N Y, 9), where a distinction was taken between the ademption and the revocation of a legacy; and where, although the court held that there might still be an ademption or ante mortem satisfaction of a legacy, it was nevertheless conceded that since the statute there could be no implied revocation, except such as the statute contemplated. Judge DENIO, by whom the opinion of the court was delivered, after stating the nature of the implied revocations enumerated in the statute, and the distinction between such reservations and ademptions, says: "The courts cannot, consistently with the statute, hold that any other mere change of circumstances will amount to an implied revocation."

The counsel suggests a long list of cases in which he supposes there must, of necessity, be a revocation, notwithstanding the statute. But these are mostly cases where the devise, or legacy, had become inoperative by reason of the destruction or alienation of the subject-matter of the devise, c., prior to the testator's death. Circumstances of this sort do not necessarily work a revocation of the will, but merely operate to prevent the beneficiary from enjoying its fruits. The will may nevertheless be proved, leaving its effect to be determined when the devisee or legatee prefers his claim.

As to the testator's expressed intention or wish to revoke or change his will, upon which the counsel seems to rely, nothing can be clearer than that such an intention, to be of any avail, must be carried into effect in the manner prescribed by the statute. As a mere auxiliary to circumstances tending to effectuate an implied revocation, it is useless, as there can be no such revocation except in the cases for which the statute provides. It is impossible, therefore, to sustain the appeal of the two sisters of Mr. Parish.

The remaining questions relate to the validity of the second and third codicils to the original will. It is insisted that these two codicils are void, on the grounds, first, that the testator was mentally incompetent, at the time they were executed, to make any alteration of his will; and, secondly, that they were obtained by the fraud and improper influence of Mrs. Parish.

It did not appear, from the oral arguments of the counsel, at the hearing, that they differed essentially as to the degree of intelligence required to enable one to make a will. But their printed briefs present very opposite theories on the subject, and I cannot consent to pass the question without remark, as I am unwilling to have it inferred that I assent to the rule in respect to testamentary capacity, supposed to have been established by several cases in this State, especially the case of Stewart v. Lispenard (26 Wend., 255). That rule is said to be, that while an idiot cannot make a valid will, yet one who has any mind at all, however low his grade of intellect, may do so; that the law on this subject does not distinguish between different degrees of intelligence, and that to deprive a man of testamentary capacity, he must be totally destitute of reason and understanding.

Considered philosophically, it is manifest that this rule cannot be sustained. It assumes that it is possible to draw a definite and precise line of distinction between idiocy and mental power. The fallacy of this assumption it requires no argument to prove. If, as I suppose, every perception is an act and every idea a state of mind, then to distinguish a man from a tree or a house from a horse is indicative of mind. But I desire to test this rule, not by any mere metaphysical reasoning, but by facts and principles familiar to all. Almost every one of ordinary experience has known various persons who were classed, both in common parlance and in law, as idiots, and must have observed that while some of these persons have more and some less intelligence, few, if any, are entirely destitute; that most of them know their friends from strangers, manifesting affection for the one and aversion for the other; and that many have the power of speech, not imitative merely, like that of the parrot, but expressive, to some extent, of thought, of feeling and of will. All this requires intelligence, and intelligence proves mind; idiots, therefore, have mind, and the difference between them and a Bacon or a Newton is a difference in degree alone.

It is said that this rule having been established in this State by repeated decisions, it is too late now to call it in question. But no amount of authority can establish a rule which is self-contradictory. If it be, as I deem it to be, undeniable that idiots, or, if not all, at least some persons belonging properly to that class, have more or less understanding, then the rule in question both affirms and denies that such persons have capacity to make wills. There is and can be no doubt that courts, in passing upon questions of testamentary capacity, will and must distinguish between different grades of intelligence, and that in cases like the present the inquiry is, not whether the testator possessed some intelligence and some mind, but whether he possessed that degree of intelligence which would qualify him to dispose of his estate by will.

It by no means follows, however, that when the inquiry relates to idiocy or mental imbecility, and there is no allegation of insanity, that it is necessary to bring the capacity of the testator up to the standard of what may be called, in any just or even technical sense, "a sound mind."

This phrase has two significations. In common parlance it means a mind of more than ordinary strength, discreet and well-balanced. In law it means a mind not affected with insanity in any form. In neither of these senses can it by possibility be made a test of mere mental imbecility. It is said to have a third signification, and to be used as synonymous with compos mentis, and to express the idea of legal competency. It has, no doubt, been sometimes vaguely used in this sense, but such a use is obviously inaccurate, and tends strongly to mislead. Take the case of one but just elevated above the grade of idiocy, who has barely sense enough to escape a commission, and is it not absurd to speak of him as a person of sound mind?

It is held in the case of Stewart v. Lispenard, and to that, under the authorities in this State, I feel bound to assent, that a man may be capable of making a valid will, and yet incapable of executing a deed, or making a contract for the purchase or sale of property. Our statute which allows wills to be executed at the age of sixteen by females, and eighteen by males, tends to support the idea. A court of equity, therefore, may commit the estate of such person to the charge of a committee, and yet, after his death, give effect to his will. We may properly say of such a person, that he is compos mentis in one respect, and non compos mentis in another; that is, that he has a mind competent to make a will, but incompetent to make a contract; but we cannot say that he has a mind sound for one purpose and unsound for another, without doing gross violence to language. It is obvious, that " non compos mentis" and "of unsound mind" are not, as the counsel seem to suppose, convertible terms; and that the words, sound and unsound, have no appropriate relation to questions of idiocy or mental imbecility.

If we would have clear and definite ideas on this subject, we must not abandon all precision in the use of phraseology Non compos mentis is a general term, embracing all who are deemed legally incompetent to transact business. It includes three separate classes, viz., idiots, persons of unsound mind, and persons of unsound memory. Each of these classes is entirely distinct from both the others. The first embraces not only congenital idiots, or idiots from birth, but also such as have subsequently become mentally imbecile, from sickness or other cause. The second class comprises all who suffer from alienation of mind, whether they are lunatics, monomaniacs, or generally deranged. The third is confined to a peculiar class, composed mostly of persons whose memories are impaired by age. To mingle these separate classes, each of which has its distinctive features, as is frequently done, tends inevitably to confusion. We have already seen, that idiots cannot be classed with persons of unsound mind, in the technical sense of the latter phrase. It is equally clear that persons of unsound memory belong to a different class from either of the others. Although an unsound memory is proof of an unsound mind, yet the converse is not true. The mind may be unsound in other respects, while the memory remains perfect. Every one of experience in life knows that in advanced age the memory sometimes becomes impaired to such a degree that the individual forgets his friends and his kindred, and is unable, ordinarily, to tell the names or number of his children, or whether they are alive or dead; and yet this same individual may, under some sudden stimulus or strong excitement, exhibit for a time his mental powers, memory included, in all, or nearly all, their former vigor. I have had occasion in one instance to pass judicially upon a will, where the testator appeared to be substantially in this condition. It was sought in that case, which is not reported, to apply the rule laid down in Stewart v. Lispenard; but nothing could be plainer than that this rule could have no application to such a case.

It may be objected to the classification here given, that it does not comport with the language of our statutes on the subject. It is true that the statute concerning wills of real estate, in its enumeration of persons incapable of making a valid devise, specifies only idiots and persons of unsound mind, and omits to name specifically persons of unsound memory; and that the statute concerning wills of personal property provides that every person of "sound mind and memory, and no others," may make a valid bequest. These statutes do, no doubt, imply that, in some enlarged and comprehensive sense, the term "unsound mind" may be held to embrace both idiots and persons of impaired memory; but, when taken together, they also recognize the very distinctions for which I contend. The first distinguishes between idiots and persons of unsound mind, and the second treats on unsound memory as something distinct from general mental unsoundness. That these distinctions are real, is too plain to be denied; and it proves nothing against their existence, that legislators and judges have not always observed them. Baron COMYN has used the terms, "idiots" and "of non-sane memory," as embracing every class of persons who are to be regarded as non compos mentis. (See Com. Digest, tit. Idiot.) The statute of wills, 34 and 35 Henry VIII, does the same, by providing that no will of lands shall be valid if made by any "idiot or by any person of non-sane memory;" but this only shows a want of just discrimination in the use of terms. It is nevertheless clear that a mere monomaniac, whose mind is perfectly sound, aside from a single hallucinated idea, cannot properly be said to be of unsound memory.

It is plain from what has been said that persons deemed in law non compos mentis are properly divisible into classes, and that such a division is indispensable to a clear understanding of the subject. It is equally plain that the competency of persons belonging to one of those classes, cannot be determined by rules especially applicable to another class. The question in this case relates to the idiocy or mental imbecility of the testator, and in determining this question it is unnecessary to inquire whether he was possessed of a sound mind or a sound memory, but only whether he retained that moderate degree of reason and understanding which is required to enable one to dispose of his property by will. It is not enough that he should be found to have possessed some degree of intelligence and mind. He must have had sufficient mind to comprehend the nature and effect of the act he was performing, the relation he held to the various individuals who might naturally be expected to become the objects of his bounty, and to be capable of making a rational selection among them. If he had this amount of intelligence, then the codicils which were rejected by the surrogate are valid and should have been admitted to probate, unless it appears that they were obtained by fraud or undue influence of Mrs. Parish.

The positions taken by the counsel for James and Daniel Parish are: 1. That the testator, Henry Parish, at the time of the execution of the codicils in question, and for the last six years of his life, was a perfect imbecile, without reason or understanding, and absolutely incapable of any rational act; and, 2. That if he can be supposed to have had any capacity, he was, in making the codicils, completely under the control of his wife, by whose fraudulent practices they were obtained.

I have no intention of entering into any analysis of the mass of evidence which has been adduced, bearing upon these questions, but will barely advert to a few items which appear to me of a striking character. There is no doubt that the opinions of intelligent witnesses, although not experts, are to be received upon such an issue. It would be utterly impossible to describe in words the air and manner, the tones of voice and expression of face, from which, to a great degree, the conclusion must be drawn. Personal observation is almost indispensable to accuracy of judgment in such a case, and hence the reception of opinions in evidence becomes a necessity.

Among the witnesses called by Mrs. Parish to support the codicils are her brothers, Edward, Henry and Richard Delafield, Mr. Lord, who drew the codicils, Mr. Taylor, a minister and Rector of Grace Church, Mr. Tileston, president of the Phoenix Bank, and Gov. Bradish, president of the Bible Society: all these are conceded by the counsel to be men of the highest character and intelligence. Of the three brothers of Mrs. Parish, Edward was the physician of Mr. Parish, and in constant attendance upon him during the whole six years of his illness. Henry, a merchant, lived in the house with him during this time, and was with him a great part of nearly every day. Richard, a major in the United States army, and superintendent of the Military Academy at West Point, had frequent opportunities of intercourse with him during the same period. Mr. Taylor was also a frequent visitor of Mr. Parish, administered the sacrament to him upon many occasions, and had other religious intercourse and various financial transactions with him. Mr. Lord drew the codicils; was many times in consultation with the testator in regard to them, and witnessed their execution. Mr. Tileston was president of the bank in which Mr. Parish was a large stockholder; saw the latter frequently, and negotiated with him upon some matters of business of great importance. Governor Bradish was a friend of Mr. Parish; visited him several times during his sickness, and received from him personally a large subscription to the funds of the Bible Society. All these witnesses, without exception, express the most decided conviction that the testator had intelligence, and that he perfectly understood the various matters to which their intercourse with him related. Mr. Lord, in answer to a question as to the state of the testator's mind upon the execution of the second codicil, said: "I had no doubt, and have not any, of his entire capacity to understand what he was doing, and the effect of it." In reply to a similar inquiry as to the mental capacity of the testator upon executing the third codicil, he said: "In my judgment, it was perfect for the purpose of making a codicil of this kind; he fully understood it, and fully agreed to it." Mr. Taylor, whose interviews with Mr. Parish were very frequent during the time of his sickness, said in reply to a similar question relating to that whole period: "I had not myself the least doubt of the soundness of his mind, nor could I have supposed that any intelligent person could doubt its soundness." Mr. Tileston had various interviews, and some very important negotiations with Mr. Parish, and to an inquiry as to the condition of his mind and understanding after his attack in July, 1849, he answered: "In all transactions between us, I thought he appeared to understand himself perfectly." Gov. Bradish, who saw Mr. Parish upon several occasions, and obtained from him a large subscription to the funds of the Bible Society, upon being inquired of as to the condition of Mr. Parish's mind, replied, that, in his opinion, the latter was capable of understanding and did understand what he, the witness, said to him; and that his, Mr. Parish's "expressions of affirmation and of negation were very strong, very marked, very decided generally, indicating intelligence, and judgment, or decision."

It is certainly very difficult to suppose that the four highly cultivated and intelligent gentlemen last named could have had the interviews, and the intercourse they describe, with a man who was substantially an idiot, and not be aware of the fact. I can myself frame no hypothesis upon which such a thing would seem to be at all probable. But if we assume that these gentlemen might all have been deceived, it is quite impossible to believe that the three brothers of Mrs. Parish could have been mistaken. That they should have had daily and almost hourly communication with Mr. Parish for six years, and not know whether he could understand the remarks addressed to him by themselves, is inconceivable. Intelligence, or the want of it, is manifested, not by speech alone, but by gesture, air, manner and countenance. An accidental concurrence of these might deceive for a time, but not for a series of years, or even days. That the Messrs. Delafield supposed that Mr. Parish had intelligence, is proven, if they are to be considered as in the slightest degree honest, not merely by their own testimony in this case, but by their whole treatment of him as disclosed by the other evidence. They addressed him as they would have done before his attack, conversed with him, consulted him, read to him from the daily papers, told him the news of the day, c., c., and never discontinued this practice, until the close of his life. That they could have pursued this course for six years, towards a man without understanding, and still suppose him intelligent, can never be believed.

The counsel for the respondents, James and Daniel Parish, evidently felt the force of this aspect of the case, and we will see how he meets it. In speaking of Mrs. Parish, and the frauds and contrivances by which, as he insists, she obtained the execution of the codicils, he says: "We shall find her watching her husband's person, day and night, never permitting any intercourse between him and others, which might reveal the true condition of his mind. We shall find her interpreting, according to her own purposes, his signs and gestures to selected persons, chosen to have this nominal intercourse with him. We shall find her preparing such persons to play the humble part of dupes, by appeals to their self-interest or their vanity, or by palpably untrue representations and impostures practised upon them. We shall find her desecrating to the purposes of fraud and deception, the sacred name and the sacred observances of religion, the holy cause of charity. We shall find her ensnaring her own highly respectable kinsmen in such a net-work that they are at length constrained, in desperation, to become the instruments of her will, to forget, to prevaricate, to misrepresent. The learned and eminent counsel is drawn in by one artifice, the pious minister by another; the sexton falls by one piece of practice, the bank president and the president of the Bible Society by another; and finally, to fill up, by direct and unmistakable untruth, every remaining chink in the barricade behind which her plunder was to be intrenched, a desperate wanderer from truth and rectitude is obtained as a witness, and induced to out-Herod Herod."

This is a most forcible and eloquent summary of the positions which it is incumbent upon the respondents to maintain, in order to invalidate these codicils for the want of testamentary capacity. The counsel is clearly right in his conception of the burdens which the case imposes upon him. He sees that it is quite impossible that all these intelligent witnesses should have failed to detect idiocy if it existed, and has taken his positions accordingly. These positions are maintained by a vigor of logic, a force of rhetoric and a perfection of art which, I cannot refrain from saying, has in my judgment rarely been surpassed. But is it possible to assent to them? They attribute to Mrs. Parish not merely the wickedness but the power of a demon. Women have no doubt existed who were sufficiently vile; but I certainly have never known, I think I have never heard of, one who could have accomplished what is here supposed; who could have carried on a game of fraud and deception for six years without a misstep; who could have practised her wiles with such success as utterly to subvert the moral sense of a whole family, consisting of such men as her brothers are admitted to be; and not only so, but to "draw in," as the counsel expresses it, and make "dupes," of lawyers, ministers and financiers, among the most eminent which the country affords. Is all this credible? One man may be deceived and another suborned; but that a dozen of the shrewdest and most high-minded men in the city of New York should be thus cheated, cajoled and corrupted, surpasses belief.

The witnesses I have named are by no means all who had intercourse with Mr. Parish, and believed in his intelligence. Those named were selected because they were specially referred to in the paragraph quoted from the counsel's argument. There were many others belonging to the same intelligent class. Among them I may mention Charles A. Davis and Moses H. Grinnell, both eminent merchants, Leroy M. Wiley, a southern planter, and former partner of Mr. Parish, and James Watson Webb, editor of the New York Courier and Enquirer, all of whom testified to their entire confidence in the intelligence of Mr. Parish. Mr. Wiley, who had a great deal of intercourse with him during his illness upon matters of business, when asked as to the condition of his mind, said: "As far as I could judge, his mind appeared to be well regulated as to business he was familiar with, or had been familiar with, when in good health." Mr. Grinnell, upon being inquired of whether in his intercourse with Mr. Parish, after his attack, he supposed the latter understood what was said to him, replied: "I never had any doubt but what he understood distinctly."

The witnesses called on the part of the respondents are far from expressing the same confident opinion. Mr. Kernochan, the leading witness and the former partner and intimate friend of the testator, did not think the latter "had much mind." In his efforts to communicate with Mr. Parish, he was never "perfectly satisfied" that the latter understood him. Mr. Folsom, the clerk of Mr. Parish, before and after his sickness, and one of the principal witnesses for the respondents, in answer to an inquiry as to the mental condition of Mr. Parish during his sickness, said: "I think through that whole period he was not far removed from an imbecile, still retaining some memory, some lingering ideas of former business habits; constant efforts to express himself, without the ability so to do, without the mind to enable him so to do." Mr. Ogden, cashier of the Phœnix Bank, had an interview with Mr. Parish upon a matter of business and "could not understand him." These are fair specimens of the testimony upon that side of the case. So far, therefore, as the opinion of witnesses are entitled to weight, the evidence, no doubt, greatly preponderates in favor of the testator's competency.

But opinions are of no importance if they are contradicted by facts. It is necessary, therefore, in attempting to dispose of this case, to look into the history of the appearance and conduct of the testator, during his illness, which is given by the testimony with the greatest minuteness of detail. This I have done, but shall not attempt to reproduce it here. Some of the circumstances which are clearly established, and about which there is no dispute, must no doubt be regarded as somewhat extraordinary, upon the supposition that the testator possessed any considerable mental capacity. Those which it appears to me most difficult to reconcile with this hypothesis, are, 1. That although his embarrassment in endeavoring to make his thoughts and wishes known, his power of speech being limited to uttering the words "yes" and "no" must have been a constant source of irritation and annoyance, he either could not or would not learn to write with his left hand, of which, for other purposes, he still had the use; and 2. That he would not or did not communicate his ideas by the use of block letters. Various hypotheses might be suggested for the purpose of explaining those circumstances, some of which it would seem to me quite possible to adopt.

But whatever may be the difficulty of accounting for these facts, it can hardly be sufficient to counterbalance the great weight of the evidence which goes to show intelligence. In addition to the force of the opinions referred to, and of the suggestions already made, as to the absolute impossibility of believing, that educated and intelligent men could have daily intercourse for six years with an idiot, talking to him, interrogating him, watching his countenance, observing and scrutinizing his actions, and still believe him to be a man of intellect.

There is much direct evidence of the testator's intelligence. I shall not attempt to give a summary of this evidence, but shall simply refer to one or two items which appear to me worthy of special notice.

The manner in which Mr. Parish held intercourse with others, according to the testimony of numerous witnesses, was this: He listened with apparent interest to whatever was said to him, or in his presence. If, in the course of conversation, he wished to ask a question, or to obtain any information, he would hold up two fingers of his left hand, shaking them in a peculiar manner towards the person from whom he wished a response. The person addressed would conjecture, as well as he could, what was wanted, and would respond accordingly. It was generally something connected with the subject of conversation at the time. All the persons present would frequently join in making suggestions. If their conjecture was wrong, he would shake his head and say, no, no. If right, he would nod his head and say, yes, yes, more or less emphatically, according to the feeling of the moment. If, after repeated efforts, no one succeeded in hitting upon his idea, or ascertaining his wishes, he would throw back his head and cease to make motions. This was the signal for giving up the effort for the time.

Mr. Charles A. Davis was in the habit of visiting Mr. and Mrs. Parish. Upon one of these occasions, as he testifies, in the course of a general conversation, Mr. Parish suddenly interposed an inquiry in his usual mode, directing it apparently to him the witness. He, supposing the inquiry to relate to the subject then under discussion, made various suggestions, which were all met with a no, and a shake of the head. After similar efforts on the part of Mrs. Parish, but equally without success, Mr. Parish gave the usual indication of his unwillingness to continue the trial longer. It then occurred to Mr. Davis, that he had, a few weeks before, spoken to Mr. Parish about a valuable piece of property which he was about to sell, and had afterwards sold, and thinking that the inquiry might relate to the price obtained for that property, he said to Mr. Parish, "I know now what you are after. You want to know what that property brought at the corner of Broadway and Franklin streets." Mr. Parish, as the witness says: "instantly exclaimed, 'yes, yes,' repeating it several times, patting me upon the arm, and expressing great gratification at being at last understood." Mr. Davis had previously testified, that the subjects which seemed most to interest Mr. Parish, "had relation to property, sales, and values."

I will mention here one other item of evidence, which appears to me still more significant. From the constantly accruing income of Mr. Parish's estate, during his illness, there were large sums to be invested. Many of these investments were made through the agency of Mr. John Ward, a prominent broker of Wall street, who testifies, that his business interviews with Mr. and Mrs. Parish were had in Wall street, to which they came together in a carriage, stopping in front of his office. He would go to the carriage, and speak to them; and when informed that they wished to invest, would propose to them, while sitting in their carriage, various securities for purchase — such as stocks, railroad bonds, and notes of mercantile firms in the city. When stocks or bonds were offered, time was usually taken to make inquiries. They would ascertain, one day, what securities could be had, and return, in a day or two, and decide whether to take them. But Mr. Ward expressly says, that this was not usually the case, in respect to notes. He says, that when notes were offered, they were generally accepted or rejected at once. Upon cross-examination, Mr. Ward was unable to specify, from recollection, more than one note, which he could be certain Mr. Parish accepted, when offered; and also one, which had been in like manner rejected; but stated his impression to be, that there were others. To the question, "Was it not the usual practice, in these transactions with your house, for Mrs. Parish to ascertain at one call what notes or securities you had, or proposed to sell, and returning, the next day, or at some subsequent period, and take, or not, as was determined upon?" the witness answered: "I think that was often the case: it was not usually the case, in respect to notes, as I believe." According to the testimony of Mr. Ward, the offer, on these occasions, was made directly, to Mr. Parish; and when the latter accepted, he did so by a nod directly to the witness. Mr. Ward expressly says, that the choice or selection, in these cases, appeared to be that of Mr. Parish himself.

Now, the great, and, if Mr. Ward is not mistaken in his recollection, controlling importance of this testimony will be readily seen. The stocks and bonds offered were mostly those of companies recently organized, of the credit and responsibility of which, Mr. Parish, from his having been somewhat secluded from the business arena, for a considerable time, could not be expected to have much knowledge. Concerning these, it was necessary to make inquiries. But when the note of a mercantile firm in the city, with the character and standing of which he was familiar, was offered, he was prepared to accept or reject it, at once. It is difficult to suppose that Mrs. Parish had that intimate knowledge of the business firms of the city, which would enable her to decide thus promptly. The decision must, as it would seem, have been made, as Mr. Ward supposes it to have been made, by Mr. Parish himself.

This testimony proves, not only that Mr. Parish had sufficient intelligence to comprehend a matter of business, but that he had self-reliance, decision and will. It also, if reliable, affords unmistakable evidence, that Mrs. Parish had confidence in her husband's intelligence, and was willing to rely, in matters involving many thousands of dollars, upon his judgment. These facts, if they occurred, cannot, by possibility, be reconciled with the supposition, that the testator was an imbecile. Their effect can only be obviated by assuming, that Mr. Ward is mistaken in his recollection, or that he misunderstood what transpired. The fact, however, that any distinction at all was made between notes, and bonds or stocks, about which he seems to be confident, and in regard to which we can hardly suppose him to be mistaken, tends to corroborate his recollection in other respects.

I have referred to these items in the testimony of Mr. Davis and Mr. Ward, as specimens, merely, of the evidence in the case. Numerous other circumstances are detailed by the witnesses, having the same tendency to support the opinions of those who have expressed their belief in the intelligence and capacity of Mr. Parish; the facts of this character, having an opposite tendency, are few, and comparatively insignificant. The evidence of incapacity rests mainly upon his failure to learn to write, or to communicate by the use of block letters; upon his great physical weakness in some respects, and upon the somewhat qualified opinions of the witnesses introduced by the contestants.

The counsel, for the purpose of adding to the force of the evidence, have introduced, by way of addenda to their briefs, the written opinions of several medical gentlemen of great eminence. Although these opinions are not under oath, yet, considering the character of the authors, the nature of the subject, and the fact, that the reasons for the opinion are in each case so fully given, they are entitled, perhaps, to about the same weight as if sworn to. I shall treat them, therefore, as a part of the evidence in the case.

To estimate rightly the force of these opinions, it is necessary to divide them into two parts; that is, to separate the part which is purely scientific from the residue. To ascertain the physical condition of a person, in any respect, from all the visible indications of that condition, is the appropriate duty of the physician; to gather together and combine all the external symptoms bearing upon the state of the brain, or any other organ, and to infer from those symptoms its actual condition, is, of course, within his province. So, also, from the ascertained physical condition of an organ, to infer its functional power, is obviously within the range of medical science. When a physician, therefore, from personal observation, or an authentic description of the symptoms of a case, has arrived at the conclusion, that there is a lesion, or any deterioration of the substances of the brain, his opinion as to the necessary effect of their injury upon the intellectual powers, is received in evidence. But it is obvious, that to make this opinion of any special value as a scientific opinion, upon a question of mental capacity, the conclusion as to the injury to the brain must be drawn from indications other than such as are purely intellectual.

If a medical witness comes to the conclusion, from the mental manifestations of an individual, that his mind is disordered; that he is insane or imbecile, and from that infers that his brain is diseased, and then tells us that this disease of the brain must necessarily destroy the intellectual powers, we have gained nothing whatever from medical science: we have simply reasoned in a circle. We had arrived at the end of the inquiry as to mental capacity, before touching upon the connection between the mind and the brain, which connection alone brings the question within the scope of that science. Physicians are not necessarily metaphysicians. Their science relates to the physical man and to his moral and mental condition, only as connected with his physical. Their opinions, therefore, can be considered as properly scientific, only to the extent in which this connection is involved. So far, then, as the medical opinions in this case, bear upon the degree of cerebral disease indicated by the apoplexy, the paralysis, the loss of speech, the convulsions, and other physical symptoms, they are to be regarded as the opinions of experts. But in so far as they rest upon the evidence going to show a want of intellect directly, and not merely as the result of disease of the brain, they derive very little, if any, additional force from the professional education of the witnesses. A very large portion of these medical opinions is of the latter description, and it is impossible properly to appreciate their force without observing the distinction here made.

It is unnecessary to review these opinions at large. I will advert only to that of Dr. Watson, which is the most elaborate of them all. A considerable portion of this opinion is devoted to showing what must have been the physical condition of Mr. Parish's brain, as deduced from his complaints, prior to July, 1849; from the attack at that time, and its immediate effects of paralysis, loss of speech, c., and from his subsequent ailments, such as periodical convulsions, c., c. All this falls legitimately within the province of the physician, and from my examination of this portion of the opinion, I must say, that it seems to me, in general, so far as I am qualified to judge of its merits, able and well reasoned; although open, no doubt, to some criticism, as Dr. Clark has very clearly shown. All the medical witnesses concur in stating, that when the disease is simply what is called hemiplegia, that is, where the lesion of the brain is confined to one of its hemispheres, as is usually the case where one side only is paralyzed, the mind is generally but slightly affected. Those called on the part of Mrs. Parish, think that the disease of Mr. Parish was of this nature, and that only one-half of the brain was involved. Dr. Watson, on the other hand, and those who concur with him, contend, that the symptoms prove a serious disease of both hemispheres, I should find it somewhat difficult to decide between these opposing opinions. Both are maintained with ability, and with some show of authority. If, therefore, the case was found to turn upon this question, its determination might depend entirely upon the onus probandi.

But I deem it unnecessary to decide which of these two opposing opinions is correct. It is true, if we adopt the conclusion of Dr. Watson, that the whole brain was affected, it would follow, that the powers of the mind were, more or less, impaired. But this would not prove that sufficient intelligence might not still remain, to enable Mr. Parish to make a valid will, or even to transact any ordinary business. What Dr. Watson says, is this: "No brain can be extensively diseased on both sides of the medium plane, without impairment of mind sufficient to be at once recognizable by the medical observer."

Now, although it may be regarded as clear in this case, that the left hemisphere of the brain was seriously diseased, yet how far the right hemisphere was implicated, is, under the evidence, to say the least, doubtful. It certainly cannot be considered as incontrovertibly established, that the brain, to use the language of Dr. Watson, was " extensively diseased on both sides." But even if it was, the only conclusion drawn from it by Dr. Watson himself is, that the impairment of mind would be such as to be recognizable by a medical observer. This clearly is not enough to render a man incapable of making a will. A man's mind may be perceptibly weakened, and he still possess that degree of intelligence which the law requires in a testator. In any view, therefore, which can be taken of that portion of the medical opinions which assumes to deduce the state of the mind, from the condition of the brain, it cannot be considered as in any manner decisive of the question at issue.

There is another portion of the opinion of Dr. Watson which is of an entirely different character. He recites the testimony of the various witnesses, and comments at length upon it, with a view to its bearing, not upon the physical condition of the brain, but directly upon the question of intelligence. I will refer to his mode of dealing with one portion of the evidence, which seems to me of the greatest importance. Many of the witnesses speak of the countenance of Mr. Parish; of its changes of expression; of the play of his features, expressive of pleasure, or the reverse. Dr. Taylor says: "His face was as expressive as usual; as it ever had been," and, in answer to the question, how did he manifest the pleasure you have spoken of, he replied; "There was an expression of pleasure beaming from his countenance, and he continued to nod his head approvingly." Mr. Tileston says: "His countenance changed from time to time, as he was pleased or displeased, on this, and all other interviews I had with him." Mr. Bradish, upon being asked whether the expression of Mr. Parish's face was of a uniform character, replied: "I should think not; from my present recollection it would vary, according to the various occasions of the excitement or interest." Mr. Webb says on this subject: "His expression was as intelli gent as I ever knew it to be, and as responsive to any remark I made." These are merely examples of the manner in which the witnesses generally speak of the expression of face.

Dr. Watson, in reference to this portion of the testimony, uses this language: "I do not know that I ever witnessed an instance where the dementia supervened late in life, in which the patient's faculties were so completely overwhelmed by the disease of the brain that he could not, while yet conscious and enjoying the sense of sight and hearing, respond, by look, or by the play of features, to the countenance, if not to the words, of those who were addressing him. Now, it is this reflection of ourselves in the faces of others with whom we come in contact, that is so apt to mislead us in our intercourse with the lunatic, the idiot and the imbecile."

This can hardly be considered a satisfactory explanation of this vital point in the evidence. It supposes that the intelligent witnesses here named and many others of the same class, with every opportunity of observing, were unable to discriminate between the instinctive conformity to their own expression of face, the reflex image of their own countenances, and an intelligent play of features, obviously responsive to the thoughts suggested. This supposition is inadmissible. It cannot be true. They might be misled in a single interview; but that after a business and social intercourse of years they should still be deceived is utterly incredible.

I deem it unnecessary to determine the question of the burden of proof, that is, whether a testator of the requisite age is to be presumed to be compos mentis until the contrary appears or whether it is incumbent upon the proponent of the will, to give evidence in the first instance on this subject, whenever the fact is contested; because, in my view of the case, the evidence very greatly preponderates in favor of the position, that Mr. Parish, at the time of the execution of each of the codicils, instead of being an utter imbecile, was possessed of considerable capacity and judgment, and more than the law requires to enable a testator to make a valid will. I do not suppose, however, that he retained all his original vigor of intellect; and the question remains, whether advantage was taken of his mental and physical weakness to obtain by fraud, coercion or the exercise of an improper influence, a will which he would not have made, if left to the spontaneous suggestions of his own mind.

This question, although not as clear in point of fact as that already considered, for the reason that the capacity of the testator is proved by affirmative evidence, while a conclusion that there was no fraud would depend mostly upon the absence of evidence, is nevertheless equally clear in law. Fraud and undue influence must be proved. They may no doubt be inferred from circumstances; and the nature of the will may be taken into consideration in determining the point. But I see nothing in the fact, that the testator, by the codicils in question, gave the accumulations of his estate to his wife, rather than to his brothers, from which it would be safe to infer fraud. Neither she nor they stood in need of it. She was very munificently provided for by the original will and the first codicil, and certainly could have had no apology for making any undue efforts to increase the provision. There may be reason to suspect that she desired to obtain the whole estate, and that she entertained some jealousy of Daniel Parish, and of his influence with his brother, and some dislike towards him and his family. But this, although proof of some human weakness, would not be enough to invalidate the codicils, and this, as it seems to me, is the utmost that can be claimed upon this point. There is no proof that she misrepresented Daniel Parish to his brother, or that she practised any fraud or artifice to create a prejudice in the mind of the latter against him; and without this, her jealousy and dislike of Daniel Parish, although it may seem to raise a suspicion, amounts to nothing more. Mrs. Parish's assiduous and constant attendance upon her husband cannot be permitted to weigh against her. If it could, it would never in such cases be safe to act in accordance with the promptings of affection, and a high sense of duty.

There is considerable direct evidence in the case, to show that Mr. Parish was not under his wife's control. I will men tion only what occurred upon the execution of the second codicil, in relation to the charitable gifts. It having been ascertained, or at least assumed, that Mr. Parish was anxious to give about the sum of fifty thousand dollars to charitable objects, the question arose as to what particular charities should be made the recipients of his bounty. Mrs. Parish's brother Edward, was at the head of, and deeply interested in the prosperity of the New York Eye and Ear Infirmary, and she proposed that the whole sum should be given to that institution; but Mr. Parish at once refused, and persisted in this refusal to the last; finally consenting, after selecting several other objects, to give the sum of twenty thousand dollars in stead of fifty, to the Eye and Ear Infirmary. This, unless Mr. Lord was practised upon to a degree that, in respect to a man of his intelligence, is almost inconceivable, affords very strong evidence that Mr. Parish in making those codicils, exercised an independent will. Upon the whole case I think it quite impossible to hold, that fraud or undue influence operating upon the mind of Mr. Parish is established by the proof. The counsel for the respondents, James and Daniel Parish, himself rejects the idea. He argues with great earnestness, that the affection of Mr. Parish for his wife was not increased after his attack in 1849, and to prove this, refers to his irritation in consequence of the dietetic restraint which she imposed or urged upon him, and to the testimony of Dr. Delafield on the subject, and then adds: "This same witness, Dr. Delafield, makes a remark quite in harmony with the facts just stated, and our views of the whole evidence. He says, that she had very little influence over him before the attack, and less afterwards." After this explicit concession by the counsel, the question of undue influence may be considered as virtually out of the case. The position upon which the able and eminent counsel relies is, that the testator was idiotic, substantially without mind or intelligence, and that his acts were dictated and all his movements prompted by his wife; and the fraud and deception imputed to her is charged as operating, not upon him, but upon the numerous intelligent witnesses who have testified to their belief in her husband's capacity. I have already stated my reasons for thinking this position untenable. It follows that, upon the evidence before the surrogate, the codicils should have been held valid and admitted to probate.

SUTHERLAND, J., concurred in this opinion.

Judgment affirmed.