Chapters in the English Law of Lunacy. the voluntary committal of habitual drunk ards to licensed retreats, and provision will soon be made for their compulsory com mittal to such institutions. TESTAMENTARY CAPACITY OF THE INSANE.
The law of England as to the testamen tary capacity of the insane falls naturally into three chapters : i. From the earliest period
 | An image should appear at this position in the text. To use the entire page scan as a placeholder, edit this page and replace "{{missing image}}" with "{{raw image|The Green Bag (1889–1914), Volume 09.pdf/580}}". Otherwise, if you are able to provide the image then please do so. For guidance, see Wikisource:Image guidelines and Help:Adding images. |  |
till 1848 each case was determined upon its own merits. 2. From 1848 to 1870 the dictum of Lord Brougham in Waring T>. Waring (6 Moor. P. C. 341) that any, the least degree of, in sanity, vitiated a will, was supreme. 3. Since the judgment of Sir Alexander Cockburn in Banks r. Goodfellow (L.R. 5 Q. B. 549). testa mentary capacity has once more become a question of fact. ( I ) Perhaps the earliest definition that we have of testamen ta ry capacity, and not the least satisfacDR. tory, was given by the Court of Star Chamber in Combe's case (Moor. 759, 3 Jac. I.), "that sane memory forthe making of a will is not at all times when the party can speak yes or nt or has life in him, nor when he can answer anything with sense; but he ought to be of judgment to discern and to be of perfect memory; other wise the will is void." A curious instance of this kind — sometimes alleged, by the way, to be apocryphal — is the following : In the days of King Henry VIII, a monk came to a gentleman who was dying, to make his will and asked him whether he would give
537
such and such lands to the monastery. The gentleman answered, " Yea." Then the monk, pursuing his advantage, inquired whether he would give such and such estates to such and such pious uses. The testator answered "yea " to them all. Then the heir at law thought it was time to interfere. He asked the dying man if the monk were not a very knave, who answered, " Yea." It is needless to say that at no period in English legal his tory could a will ob tained under such circtimstances have been admitted to probate. In the time of Charles I we find a definition of "judg ment to discern " in the law testamentary. "To a disposing memory, it is neces sary there be an un derstanding j u d gment, fit to direct an estate." In the reign of Charles II (see "Nisbet's Doubts," 207) "a will made by a sickly child, newlyftebes, and without the knowledge of his curators, in the absolute favor of the nurse in whose care he had been, was reduced as inofficious." The next leading case to which we shall refer is Dew v. Clark (1826, 3 Add. 79-209, and Add. 123 et seq.). The material facts were these : Ely Stott died in 1821 leaving a widow, and a daughter by his first wife. His personal property amounted to about ¿40,000. By his will, made in 1818, Stott gave to his daughter, to whom he had con ceived a violent and irrational hatred, a life interest only m a comparatively small portion of his estate. Sir John Nicholl held that this
