Delafield v. Parish

Selden, Ch. J.

(dissenting). — 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 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undoubtedly be, that although we might find that the codicils were invalid, we might also find that the will itself was revoked, and that Henry Parish died intestate.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to give to that argument its fullest force, I have been unable to see how it can, with propriety, be held that the will was revoked.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 express 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, blow, conceding that in a case where a testator, apparently intelligent, but whose powers of communicating his ideas were 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 Rev. Stat., 64, § 43, et say.), presents an insurmountable obstacle to the establishment of such a revocation here. The notes of the revisers 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 (16 N. Y. [2 Smith], 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 óf 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 revocations 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 has become inoperative by reason of the destruction or alienation of the subject-matter of the devise, &e., 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 those 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 the 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 Hew ton, 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 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. Won 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 causes. The second class comprises all who suffer from aberration 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 distinct 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 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 can 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 other” 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 an 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 these classes cannot be determined by rules specially 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 the 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 opinion in evidence becomes a necessity. Among the witnesses called by Mrs. Parish to support the codicils, are her brothers, Edward, Henry, and Richard Detail eld; 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, administering 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. Gov. 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, I 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 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, judgment, and decision.” It is-certainly very difficult to suppose that the four highly-cultivated and intelligent gentlemen last named could have had the interviews and intercourse they describe with a man who wg,s substantially an idiot, and not he 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 have all 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 gestures, air, manner, and countenance. An accidental occurrence 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 considered 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.j 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 to be 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 6 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 respondent 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 position 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, and 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 Hew 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 Eorh Gowrier and Enqui/rer / 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 Phoenix Bank, had an interview with Mr. Parish upon matters 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 opinions 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, bnt 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. Hr. 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 tc 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 stock 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. Hpon 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 return 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.

How 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, 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 recollections, 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 recollections 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 theopinions 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 opinions 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 thé 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 their province. So, also, from the ascertained physical condition of an organ, to infer its functional powers, 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 same conclusion, that there is a lesion or deterioration of the substance of the brain, his opinion as to the necessary effect of this injury upon the intellectual powers, is received as 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 the 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 individual 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 force, from the professional education of the witnesses. A very large portion of these medical opinions is of the latter description: it is impossible frequently 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, &e., &c., 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, when 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 were 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: “Mo 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.”

Mow, 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, wMch 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, and expressions of pleasure, or the reverse. Mr. Taylor says: “ His face ivas as expressive as usual — as it ever had beenand 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 intelligent 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 his 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. How, 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 witness here named, and many others of the same class, with every opportunity for observing, were unable to discriminate between the instinctive conformity to their own expression of face; the reflex images 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 greatly preponderates in favor of the position that Mr. Parish at the time of the execution 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 he 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 in- ■ validate 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 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 b.e 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 mention 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 hT. T. 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, instead of fifty, to the Eye and Ear Infirmary. This, unless Mr. Lord was practised upon to a degree that, in respect to ¿t man of his intelligence, is almost inconceivable, affords very strong proof 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 restraints which she imposed or urged upon him, and to the testimony of Dr. Delafield on that 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 with Selden, Ch. J.

For affirmance of the judgment of the surrogate and Supreme Court, holding the codicils to be void, Denio, Davies, Wright, Allen, Smith, and Gould, Justices — 6.

For reversal, Selden aud Sutherland, Justices — 2.

Note. — In the report of this case in 25 N. Y. [11 Smith], 9, which has appeared while this volume is going through the press, the reporter states in a foot-note on page 29, that certain cases (Buel v. McGregor, and Matter of the will of Ustick) cited in the opinion of the court, do not professedly impeach the law of Stewan't v. Lispenan'd. On page 66, at the end of the opinion of the court as delivered by Davies, J., the reporter also notes the concurrence of four other judges, with certain qualifications; and he adds that Debió, J. (who was one of the four judges referred to), “ did not concur in the disapproval of the decision of Stewan't v. Lispenard, so far as relates to the law as enunciated in that case.” The head-note also questions whether that case was really overruled.

Erom these statements, it might possibly be inferred that but four judges, in all, concurred in disapproving that case. The fact is otherwise, as may be seen by a careful perusal of the opinions.

The opinion of Mr. Justice Davies unqualifiedly condemns Stewarrt v. Lispenard. It is expressly stated by the reporter, at page 66, that Judges Weight, Alleh, and Smith, concurred in the opinion rendered by Judge Davies. Next, the opinion of Selden, Ch. J., at pages 100 to 102, declares his disapproval of Stewarrt v. Lispenard, in the most emphatic terms. He pronounces it legally impossible to sustain the point in that case. “No amount of authority,” he says, at page 101, “ can establish a rule which is self-contradictory.” In this opinion, Judge Suthebland concurred; page 121. It is true that Judge Gould did not agree to overrule Stewan't v. Lispenan'd; and the reporter also states that Judge Dbhio did not. But it distinctly appears that six of the eight judges did unite in overruling it.

Again. Mr. Justice Gould is stated to have read a “dissenting” opinion. It is obvious, however, that the result he attained was a concurrence in affirming the judgment. The opinion of Mr. Justice Davies was against the codicils, on the ground of total incapacity. In this, four other judges concurred, making it the judgment of the court. Mr. Justice Gould considered that, according to the rule laid down in Stewarrt v. Lispenarrd, the decedent had testamentary capacity; but he condemned both codicils, on the ground that they had been obtained by undue influence. He concurred in the judgment, and did not dissent from it.

The reporter’s foot-note, oh page 121, at the end of the case, gives a history of resignation, illness, and temporary absences of various judges during the year in. which this case was decided (1862). These are characterized as an “ unfortunate concurrence of circumstances.” Every one of these circumstances occurred, however, subsequently to the final decision of the Parish Will Case. It may reasonably be conjectured, therefore, that none of them had any influence upon that decision. All the judges were present on each argument of this cause, except Judge Selden, who was absent during the first argument, and who gave a dissenting opinion.

The report, at page 9, announces that the case was decided at June Term, 1862. This is a mistake. It was decided at the prior March Term, having been argued the last time in the January Term. The remittitur was sent down from the Court of Appeals, on the 11th of April, 1862. It will be seen, by examining the reporter’s own note, therefore, that the only circumstance of the class noticed by him, which really occurred in any connection with this case, is the absence of Judge Seldbn during the first argument, and he did not unite in the judgment. At page 14, the reporter states that the judges who sat in 1861, were “equally divided upon the question of fact — the testamentary capacity of Mr. Parish.” There are many other varieties of opinion which might have prevented the concurrence of the number of judges required to pronounce a judgment. On the validity of the codicils, as on the authority of Stewart v. IAspenard, the opinions in this case stood as three to one.

In the preparation of this case for the present volume, it has been deemed advisable to give the points of counsel, on which the case was argued in the Court of Appeals. — Reporter.