THE AMERICAN LAW REGISTER. NOVEMBER, 1863. MENTAL UNSOUNDNESS AS AFFECTING TESTA- [The following essay, composed by Edmund Wetmore, Esq., of the senior class in Columbia College Law School, received the first prize at the commencement in 1863. The Committee of award consisted of Messrs. Murray Hoffman, M. S. Bidwell, and William Mitchell, of New York. It is but justice to the author to remark that by the rules of the Law School, the length of the essay was limited to a fixed number of pages. His subject is consequently treated with more brevity and condensation than he would have desired. The essay elicited distinct and unequivocal praise from the committee, and the views presented are believed to be worthy of the attention of the profession. T. W. D.] I. Insanity, as it is recognised in law, appears under two aspects: first, as active insanity or mania, and secondly, as passive insanity. Mania may be either general or partial, and may affect the moral propensities or the intellectual faculties. Passive insanity includes idiocy or imperfect development arising from congenital defect, and imbecility which results from causes supervening after birth. This classification might be extended, and does not include all the distinctions which have been admitted in the Courts, much less all those known to physicians. It is, however, sufficiently exact for the present purpose. 1 For a distribution more in accordance with medical science, see Copeland's VOL. XII.-1 By a rule of law, as ancient perhaps as the custom of making testaments, no person of unsound mind can make a valid will. The present inquiry will be confined to an examination, necessarily brief, of the manner in which this rule has been applied by the Courts generally, and particularly by the Courts of the State of New York, to the various forms of insanity just mentioned. There can be no controversy concerning the method of application in regard to some of these forms, and it will only be necessary to mention them for the sake of completeness; in regard to others, questions of great subtlety and difficulty perpetually arise. II. ACTIVE INSANITY OR MANIA. 1. General Mania. a. Medical Definition. Mania is recognised in various forms by physicians, and is usually classified into intellectual and moral mania, though these latter terms are not accepted as accurate by all psychologists. Among the various definitions of general mania which have been given by medical writers, that given by Dr. Combe is perhaps the most satisfactory and philosophical. He says: "It (mania) is the prolonged departure, without an adequate external cause, from the state of feeling and modes of thinking usual to the individual when in health."1 When the disorder involves the whole moral nature, the case is one of general moral mania; when it involves all or most of the operations of the understanding, it is general intellectual mania.2 b. Legal Definition. The legal criterion of the existence of general intellectual mania is that of delusion. "The true test of the absence or presence of insanity," says Sir John Nicholl upon Med. Dict. in verb. insanity. Also Ray's Med. Jour. of Insan. p. 71. (Dr. Ray's is perhaps the best medico-legal classification which has been given.) See also Whart. & Stillé Med. Jour. 74, et seq. 1 Combe's Obs. on Ment. Derangement. 2 Whart. & Stil. Med. Jour. 22 174, 235. 3 "Insanity," as here used, has a meaning equivalent to that of mania as understood by physicians, and in the sense in which it is employed in the present essay. A certain amount of confusion in the use of terms is unavoidable when the same words, as is the case with many of the words denoting the different forms of this point, "I take to be the absence or presence of what, used in a certain sense of it, is comprisable in a single term, namely, delusion. Whenever the patient once conceives something extravagant to exist, which has still no existence whatever but in his own heated imagination; and whenever, at the same time, having once so conceived, he is incapable of being, or at least of being permanently reasoned out of that conception, such a patient is said to be under a delusion,1 in a peculiar half technical sense of the term ; and the absence or presence of delusion, so understood, forms, in my judgment, the only true test or criterion of absent or present insanity. In short, I look upon delusion, in this sense of it, and insanity to be almost, if not altogether, convertible terms." General moral mania, as understood in law, is said to consist "in a disorder of the moral affections and propensities, without any symptom of delusion or error impressed upon the understanding." c. Application to questions of Testamentary Capacity. No person suffering from general intellectual insanity can make a valid will, as being beyond all doubt a person of unsound mind, but general moral mania, as above defined, has never been held a sufficient ground for annulling a testament. The insanity of the testator, in order to have that effect, must be shown by proof of delusion, which is, of course, characteristic of intellectual mania alone. 2. Partial Active Insanity. a. Medical Definition. Medical writers define partial intellectual mania in which the hallucination is confined to a particular mental disorder, have a scientific meaning which is different from their popular signification. 1 Sir JOHN NICHOLL has elsewhere given a definition of delusion which has been objected to by Lord BROUGHAM, who substitutes a definition which is in turn criticised by Judge DEAN. (1 Am. Law Reg. [N. S.] 519.) The definition above quoted, however, seems to be free from any of the objections suggested in the other cases. 2 Dew vs. Clark, 3 Add. 79, (also separately published, though the separate case is now rare.) 3 People vs. Hopp, 19 Am. Jour. of Insan. 457. idea, or train of ideas.1 Corresponding to intellectual monomania, partial moral insanity is said to consist in the perversion of one or two only of the moral powers. 3 12 b. Legal Definition. The law early recognised the distinction between general and partial insanity, and the legal criteria of the existence of the latter are not materially different from those adopted in medicine. c. Application to questions of Testamentary Capacity. In the case of Dew vs. Clark, before cited, it was held that partial intellectual insanity will invalidate a will, provided the latter is the direct unqualified offspring of the morbid delusion. The same view has been generally adopted in this country.5 6 The doctrine of Dew vs. Clark, and Greenwood vs. Greenwood, has never been impugned in this country, but has been somewhat disturbed in England by a later decision in the case of Waring vs. Waring. In that case an extreme position in regard to intellectual monomania, as affecting testamentary capacity, was taken by Lord BROUGHAM in delivering the opinion of the Court, without dissent from Lord LANGDALE, Dr. LUSHINGTON or Mr. T. PEMBERTON LEIGH, by whom the case was heard. Lord BROUGHAM argued that the mind, being one and indivisible, if it is unsound at all times on one subject, is a diseased mind; that no confidence can be placed in the acts of a diseased mind, however rational those acts may be, and hence, that a monomaniac cannot make a valid will even when his delusion does not concern the subject of the disposal of his property. He lays down the rule that "the existence of delusions being proved, and their continuance proved or assumed at the date of the factum, * it is wholly 1 Ray's Med. Jour. of Insan. 152. 2 Dean's Med. Jur. 500. 3 Hale's P. C. 30. * Whart. & Stil. Med Jour. & 245, et seq. 3 Add. 79. Also, Greenwood vs. Greenwood, 3 Curties, App. 5 Leech vs. Leech, 1 Pa. Law Jour. 179, s. c. Am. Law Jour. Oct. 1851. "A monomaniac may make a valid will, when the provisions of the will are entirely unconnected with, and of course uninfluenced by the particular delusion:" per GRIDLEY, J., Stanton vs. Weather wax, 16 Barb. 259. 66 Moore's Priv. Coun. Cas. 349, (1848.) immaterial that they do not appear in the will itself," or, of course, that they do not concern the subject-matter of the will. He elsewhere applies the rule to monomania, though its terms do not necessarily include more than general insanity.1 This judgment was not received with satisfaction in England,2 and, as has been already stated, has not been adopted here. Its reasoning seems to be erroneous in at least two respects. (1.) The whole argument rests upon the assumption that the seat of mental disorder is the mind itself-that the mind is the thing diseased. But, in truth, the actual seat of the disease is absolutely unknown. Three theories prevail upon the subject among physicians the Psychological theory, maintained by those who make the immaterial essence of the mind the seat of insanity; the Somatic theory, adopted by the Phrenologists, who locate the disease in the brain; and the intermediate theory, derived from Aristotle, and which is a compromise between the other two. None of these theories are established, and, from the nature of the case, none ever can be. The rule of Waring vs. Waring, therefore, is founded upon a fact which is assumed, but not proved, viz.: that "the essence which we call mind" is the seat of insanity. (2.) But, even if this could be established, the next step in the argument is also conjectural. Granting that, in insanity, the mind is the seat of the disease, and that, being indivisible, it cannot, in such a case, with strict metaphysical accuracy, be said to be sound in any part, it does not follow that a diseased mind may not perform most of its functions as well as a healthy mind. Certainly the contrary cannot be asserted, in view of the imperfect knowledge we possess of the manner in which the mind acts, and with 1 The doctrine of Waring vs. Waring has usually been considered at variance with that propounded by Sir JOHN NICHOLL in Dew vs. Clark, and is so stated in most, if not all of the writers on medical jurisprudence. The rule laid down by Lord BROUGHAM, however, is not so much a variation from that of Dew vs. Clark, as an extension of the latter. See Sir JOHN NICHOLL's remarks in the beginning of his opinion in Dew vs. Clark, and the quotations from that opinion in Waring vs. Waring. 2 See the remarks in 12 Lond Jur. 513, (Part II.) 3 Whart. & Still. Med. Jour. 79, et seq. Sir Wm. Hamilton's Metaphysics, 272-273. |