In re the application for the probate of the will of Macpherson , 1 Connoly 223 ( 1889 )

The Surrogate.

A perusal of the testimony taken in this case must lead any mind to the conclusion that the testatrix, for a considerable period before her death, was an excitable, sickly woman, who, on slight provocation and often with no apparent cause, flew into fits of passion and displayed many symptoms of a diseased mind. Conversation upon topics connected with certain of her relatives, invariably excited her to some outburst. No person in the enjoyment of her senses w'ould have composed the letter which appears to have been left at the house of Judge Angel, by the deceased. Nevertheless, .the unanimous testimony of the witnesses (with possibly the single exception of Mrs. Angel), is to the effect that, while • these manifestations of an unhealthy mind were chronic from the date of her first illness, she was sometimes, for continued periods of time, in the possession of her faculties.

In the light of these facts, the law as laid down in the case of Gombault v. Public Administrator (4 Bradf. 226), might be taken as the text upon which to write a decision of this cause, viz.: “ A will made in the lucid interval may be valid; but the facts establishing intelligent action must be shown. The nature and character of the instrument as to its dispositions have great influence; and it is important to ascertain whether they harmonize with the decedent’s affections and intentions otherwise expressed.”

In the case at bar, the subscribing witnesses prove the due execution of the will, and that at the time, the testatrix had mental capacity to make a will. One of the subscribing witnesses was a law clerk and presumably familiar with the legal requisites.

The will was drawn by Mr. Eudd after an interview with testatrix, who called at his office for the purpose of giving instructions therefor. Thereafter he received a note from testatrix containing substantially similar directions, and the will was drawn accordingly, and sent to .her by a messenger who superintended its execution, at the house of decedent. At this interview with Mr. Eudd, he testifies that she conversed rationally upon the subjects introduced. That the will is in accord with her expressed intentions, appears by the testimony of her brother, as well as by the evidence of Mr. Eudd.

In the case of Chambers v. Queen’s Proctor (cited in Gombault v. Public Administrator, supra), the decedent died by his own hand the day after he executed' the will; there had been indications of insanity immediately before and after its execution. The court said : “ If done during a lucid interval, the act will be valid, notwithstanding previous and subsequent insanity ; ” and the will was upheld mainly on the ground of the reasonable dispositions contained in the instrument, the absence of proof of delusion at the time of the factum, and the rational manner in which the act was performed.

Every incident specified in that case is supplied here for the purpose of supporting the will; and I am of opinion that the will should be admitted to probate.