Allegheny county, on September 4, 1887, died | his son Hampton, an annuity of $500 for life; at the age of seventy-three years. His wife had died seven years before, but he left, surviving him, six children,-Alexander H. (this appellant), with four brothers, and a daughter, Virginia, married to Patrick H. Winston. He left a will dated May 24, 1883, to which were appended two codicils, one dated May 29, 1884, and the other July 20, 1886. His estate, made up of realty and personalty, was valued at be tween $300,000 and $400,000. By the will he gave to his executors, in trust for bis daughter Virginia, $25,000; to his son Zant, $5,000; to proved, and it was proved without contradiction | that it was dictated by himself and perfectly well understood by him both at the time of execution and after that date. Harmony Lodge, I. O. O. F.'s Appeal, 127 Pa. 269.

So, the fact that a testator was an habitual drunkard and subject to not infrequent attacks of mania a potu during the last ten years of his life will not invalidate his will where it does not appear that he was drunk and of unsound mind on the day it was executed. Hebert v. Winn, 24 La. Ann. 385.

And proof that a testator was not properly a mad man, but an habitual drunkard, who under the excitement of liquor acted in all respects very like a mad man, will not invalidate his will where it appears that he was not under the excitement of liquor when it was made. Ayrey v. Hill, 2 Add. Eccl. Rep. 206.

And the fact that a testator had hurt himself to a great extent by indulging in intoxicating liquors, and that he displayed acts of folly while drunk which drunkards so frequently display, does not show him incompetent to make a will where he appeared to be sober at the time of its execution, Hubbard's Will, 6 J. J. Marsh. 59.

So, proof of a long-continued habit of drinking intoxicating liquors to excess, and of the fact that such habit tends to impair the intellect and moral sense, is not enough to invalidate a will by reason thereof; it must appear that at the time of its execution the testator was so enfeebled in mind by his habitual use of intoxicating liquors, or so intoxicated at the time of its execution, as to be incapable of making a will. Re Tracey, 11 N. Y. S. R. 103.

And proof of occasional intemperance upon the part of a testator, and that during such periods he was not competent to attend to business, does not show testamentary incapacity, where there is no direct evidence to show that at the time the will was made he was not in possession of the ordinary degree of mind and memory, or that he was in such a state as not fully to understand the business in which he was engaged. Goble v. Grant, 3 N. J. Eq.

629.

Nor will evidence that a testator was occasionally under the influence of intoxicating liquor and was quite feeble affect the validity of his will where it appears that he was perfectly sober when the will was executed and there was nothing to show lack of memory, and he had a full understanding of his affairs and was entirely free from restraint. Re Watson, 34 N. Y. S. R. 906.

Nor will proof that a testator had spells of intemperance and spells of sobriety, and that whenever he had been drinking for some time he became crazy, extravagant, foolish, and delirious, invalidate his will as against evidence that he was rational when sober, and proof by subscribing witnesses that he was sober and rational at the time he made it. Hart v. Thompson, 15 La. 88.

And something more than vague statements to the effect that the testator was more or less under the influence of liquor at an early hour in the morning of the day on which his will was executed

to Thomas, $5,000; to his brother George W., an annuity for life of $200. All the residue he gave absolutely to his son Florence, and appointed him and James J. Donnell executors of the will. By the first codicil he adds $5,000 to the bequest to his son Thomas, making it $10,000; to his son Alexander H., who had been given nothing in the will, he gave an annuity for life of $400. By the second codicil he gave to his son Hampton, in addition to his annuity, a house and lot then in the son's occupancy, and increased Alexander's annuity is needed to destroy the presumption of testamentary capacity. Dimond's Estate, 3 Pa. Dist. R. 554. So, the fact that during the last six months of the life of a testator he was for a large portion of the time more or less under the influence of intoxicating liquors will not invalidate his will made during that time, where it appears that at the very time of its execution four men saw him, who all unite in saying that he was free from intoxication and in full possession of his faculties, and the signature was not one of a trembling inebriate, but the bold rapid writing of a man in possession of power. Fluck v. Rea, 51 N. J. Eq. 233, Affirming 51 N. J. Eq. 639.

f. Presumption and burden of proof.

The legal presumption of a testator's capacity is not destroyed by proof of instances of longer or shorter incapacity from drunkenness. Black v. Ellis, 3 Hill, L. 68.

And habitual intoxication upon the part of a testator raises no presumption that there was incapacity or drunkenness at the time of making his will; such condition must be affirmatively proved or the presumption of capacity will prevail. gel v. Egner, 54 N. J. Eq. 623; Re Lee, 46 N. J. Eq. 193.

Koe

So, the burden of showing the want of capacity of a testator because of drunkenness at the time of the execution of his will rests with the party contesting it. Harper's Will, 4 Bibb, 244.

A will made by a person addicted to drunkenness is presumed to be valid, and its invalidity is to be established by the person alleging it. Starrett v. Douglass, 2 Yeates, 48.

And long-continued inebriety, though resulting in fits of insanity, does not require proof of a lucio interval to give validity to the acts of a drunkard, as is required where insanity is proved. Gardner v. Gardner, 22 Wend. 526, 34 Am. Dec. 340; Koegel v. Egner, 54 N. J. Eq. 623; Re Lee, 46 N. J. Eq. 193.

Insanity from intemperance is generally of a temporary nature, followed, not merely by a lucid interval, but by permanent restoration to reason, and to such insanity the usual presumption of continuance does not apply. Duffield v. Roberson, 2 Harr. (Del.) 375.

And to prove that a testator about the time of the execution of his will was addicted to the habitual use of intoxicating liquors to such an extent that he was occasionally drunk is not sufficient to render it incumbent upon the proponents of the will to show that at the time it was executed he was free from incapacitating intoxication. The person who asserts such intoxication must affirmatively show that it existed at the very time the will was made. Elkinton v. Brick, 44 N. J. Eq. 154, 1 L. R. A. 161.

But to uphold a will made by a testator who for some time before its execution and until his death was generally in a state of derangement produced by the habitual and intemperate use of ardent spirits, though he enjoyed some intervals in which his mind might be deemed competent, it should be shown by clear and satisfactory testimony to have

from $400 to $500. The result of the will and | In this petition he averred testamentary incodicils was to leave fully three fourths of the capacity of his father at the date of the execu estate to his son Florence. The will was tion of the will and codicils and undue influproved September 10, 1887, without notice to ence exercised over him by Florence C. Miller, the heirs or legatees. An appeal was taken by the principal beneficiary, to procure the makHampton J. Miller from the decree admitting ing of them. It is not important, in the issue the will to probate, which was dismissed be- before us, to notice and discuss the decree on cause of neglect of appellant to file the bond this petition in the court below, in the interval required by law. (See 159 Pa. 562.) On June between the probate and dismissal of petition. 27, 1892, Alexander H. Miller (this appellant) They afford us no aid in the decision of this presented his petition to the orphans' court for contention. It is sufficient to say that the apallowance of an appeal from the same decree.pellant got his case properly before the court been made in one of such lucid intervals. Coch- | absolutely void. The existence of the commission ran's Will, 1 T. B. Mon. 264, 15 Am. Dec. 116. is only prima facie evidence of incapacity, and may be rebutted by proof; and such a person, if of sufficient mental capacity, may make a valid will notwithstanding the commission. Lewis v. Jones, 50 Barb. 645.

And bare proof of execution is not sufficient to authorize the probate of a will of an aged person of a low grade of intellect who had become addicted to the excessive use of intoxicating liquors, and who was perfectly mad while under their influence; there must also be proof of instructions or knowledge of contents. Durling v. Loveland,2 Curt. Eccl. Rep. 225.

And proof that a testatrix knew what was in the will she signed is imperatively demanded where there is no evidence that she had anything to do with its preparation or that she ever read it or heard it read or the contents stated,-especially where it affirmatively appears that her mental faculties were seriously impaired by the use of strong drink and opiates. Burritt v. Silliman, 16 Barb. 198.

A party seeking to invalidate a will upon the ground of the incapacity of the testator induced by habits of intoxication, which were not such as to render him habitually incompetent to transact business, however, must show the existence of the incompetency at the very time of executing the will. Andress v. Weller, 3 N. J. Eq. 604; Fluck v. Rea, 51 N. J. Eq. 233; Sanderson v. Sanderson, 52 N. J. Eq. 243; Hebert v. Winn, 24 La. Ann. 385.

And a finding of habitual drunkenness against a testator, adjudging him to be a fit subject for guardianship, is not conclusive against his capacity to make a will. It is prima facie only, and if actually restored to capacity he may make a will, though his restoration be not judicially determined; and the court may properly hear evidence as to whether or not he was actually restored to capacity at the time of its execution. Re Johnson, 57 Cal. 529,

To invalidate a will made by a person under commission the testimony must go to the extent of showing that at the time of the execution of the will the testator was mentally unfit to dispose of his property. Dugan's Estate, 6 Pa. Dist. R. 222.

In Ke Patterson, 4 How. Pr. 34, however, the rule was laid down that while a commission remains unrevoked the lunatic or habitual drunkard cannot make a valid will without permission of the court, the existence of the commission being conclusive against the validity of the will.

But this holding was overruled by Lewis v. Jones, 50 Barb. 645, supra, in which Re Patterson, 4 How. Pr. 34, was distinguished and explained, the court saying that the determination that the order allow

To invalidate a will upon the ground of the intoxication of the testatrix it is incumbent upon the contestants to prove, not only that she had been intoxicated or was usually intoxicated, but that she was so in fact at the very time the will was ex-ing the will to be made could be granted ex parte ecuted, or that her mind was so clouded by drink that she was incompetent to give expression to her real testamentary intentions. Re Halbert, 15 Misc. 308. Keeping a will uncanceled gives rise to a pre-right of an habitual drunkard under a committee sumption that it was not procured against the testator's will and intelligent consent, whether fraud, undue influence, or intoxication is set up against it. Pierce v. Pierce, 38 Mich. 412.

But the legal presumption that a testator understood the contents of her will which had been read to her is only prima facie where she was of great age and addicted to the use of opiates and ardent spirits to such an extent as to enfeeble and impair her faculties. Rutland v. Gleaves, 1 Swan, 198.

IV. Inquisition of drunkenness as evidence.

A retrospective finding of a jury on a commission of habitual drunkenness overreaching a will made by a testator is presumptive, and not conclusive, evidence of his incapacity. Re Patterson, 4 How. Pr. 34.

And the general rule would seem to be that the finding of an inquest that a testator was an habitual drunkard is only prima facie evidence of want of testamentary capacity, the effect of the inquest being to shift the burden of proof to the party asserting capacity. Lackey v. Cunningham, 56 Pa. 870; Dugan's Estate, 6 Pa. Dist. R. 222; Hannum v. Worrall, 2 Del. Co. Ct. Rep. 49.

Thus, a will made by an habitual drunkard while subject to a commission is not for that reason

was all that was necessary for the determination of the appeal in that case, and that there was nothing in the decision which militates against the

to make a will subject to the prima facie presumption that he is incompetent, the order in that case merely discharging the lunatic from the commission and inquisition so far as to permit him to make his will under the advice and with the sanction of a vice chancellor, but leaving him at liberty to revoke and cancel the will without such sanction; and that if there is a doubt of the power of a person under a commission of lunacy to make a valid will it does not necessarily follow that the same doubt applies to a will made by one under a commission as an habitual drunkard, drunkenness always having its sober intervals, while lunacy does not.

An application to the court to suspend an inquisition of habitual drunkenness so far as to permit a person to make a will is addressed to the discretion of the court, and may be made ex parte or on notice to the committee and next of kin, as the court shall direct. Re Patterson, 4 How. Pr. 34.

So, failure of the committee appointed for a person found to be an habitual drunkard to give bond and take charge of his property until his death, leaving him to manage his own affairs after a period of thirty-five years, raises a presumption that he had reformed and was competent to make a will, that being a fair inference after the lapse of more than twenty years. Leckey v. Cunningham, 56 Pa. 370. F. H. B.

below, and that there was a regular judicial | ataxia. This, appellant alleged, contributed decree on the merits, after hearing, by a court to his physical and mental prostration. As to of competent jurisdiction, against him, from the probable effects of alcoholism and the diswhich he now appeals to this court. He al- ease of locomotor ataxia on the mind, the tesleges the court erred-First, in not determining timony of reputable experts was offered by that there was evidence for a jury that the tes- the contestants, but rejected by the court for tator lacked testamentary capacity at the date the reason that a prima facie case of incapaciof the execution of the will and codicils; and ty had not been made out, and the further second, in not finding there was evidence for a reason that a hypothetical question put to the jury that the will was procured by undue in experts, purporting to embrace the facts, omitfluence exercised over him by Florence C. ted material facts proved by appellee. We do Miller. not think the grounds of the rejection sufficient. The testimony, when added to that already in, might have, if duly considered, affected the judgment and changed the result. But a comparison of the hypothesis with the facts contestant's evidence tended to prove shows that it embraced every material fact he alleged. He was not bound to include in it facts alleged by proponents which he denied, or facts which may be fairly considered irrele vant. Hence, in passing on the testimony, we take into consideration that which was rejected.

When the question before an appellate court is whether the evidence adduced in the court below was of that character which required its submission to a jury, and the answer of the appellate court is in the affirmative, a sort of restraint in the expression of an opinion is always necessarily imposed on the appellate court, not because of doubt in the correctness of its judgment, but because of the possible effect of elaborate discussion on the retrial of the cause. Hence, in whatever we may say in vindication of this judgment, we desire it to be distinctly understood that we are not pointing out what the verdict of the jury ought to be, but only the evidence on which a jury, after a consideration of it, may rest a verdict, if, in view of all the evidence, such verdict be warranted.

He

The learned judge of the court below went beyond the issue in his finding, when he declared that the testator possessed "testamentary capacity of the highest order." And while, if the issue presented only this one question, the error might be of no consequence, yet, because of the two questions, as will be noticed in our discussion hereafter of that relating to undue influence, the error becomes very material, and therefore requires notice. Take first the undisputed facts: An aged man, worth over $300,000, makes his will. has six children. He gives more than three fourths to one of them. For ten years before his death-a period covering the date of the will-he drank largely of intoxicating liquors; besides, was sorely afflicted with an incurable disease. Next take the disputed facts. The testimony of disinterested witnesses shows that by reason of the excessive use of liquor, he was in almost a constant state of intoxication. Interested witnesses then testify to the consumption during that period by him, daily, of unusual quantities of intoxicant; that in consequence his memory bad failed, and his power of will had weakened. Is it probable, in view of the undisputed facts, as well as those disputed, that testator had testamentary capacity of the highest order? Without considering the expert testimony, is not such a conclusion opposed to common knowledge derived from observation? In our judgment, there was manifest error in so finding. But, keeping within the scope of the issue, did he possess simply testamentary capacity? That is all the law requires in a valid testamentary disposition. This the court below could have found, notwithstanding testator's established habits of intoxication. Even a judicial decree that he was an habitual drunkard, and the appointment of a committee would have been, although conclusive as to contractual, only prima facie evidence of testamentary, incapacity. Leckey v. Cunningham, 56 Pa. 370. While we are of opinion that the evidence wholly fails to establish a higher order of testamentary capacity, we will not say that the testator was destitute of that mental capacity requi site to a valid testamentary disposition of his

The appellant averred that the testator lacked testamentary capacity when he executed the will and codicils. The court below, as a question | of fact, determined that this averment was so unfounded that there was no evidence which would warrant a jury in sustaining it, but that, on the contrary, he possessed "testamentary capacity of the highest order." It was alleged that the testator had become so addicted to the use of intoxicating liquor years before the date of the will, and at that date the habit was so aggravated and confirmed, that his mental powers were weakened, and bordered on imbecility. In proof of this, twenty witnesses were called, some of whom had peculiar and long-continued opportunities of observation, who testified that he began the drink habit about the year 1865, and kept it up until after the date of the will and codicils, and until his death; that it had so grown upon him as early as 1879 that he then drank at times as much as a quart a day, and, that it might be easy of access, he kept it, in large quantities, both at his house and law office; that he bought whisky for his own use, on more than one occasion, by the barrel. One of the witnesses to the excessive use of liquor was W. A. Lewis, Esq., who commenced reading law with him in 1865, and continued in his office until 1882. Some of the others were servants in his family; others street car conductors on the lines leading past his home. Besides these disinterested witnesses were some of his children, living much of the time in his house. That he drank liquor to gross excess from 1879 to his death cannot be questioned, from this testimony, unless almost every one of the twenty witnesses be guilty of flat perjury. If they be believed, then, his brain was saturated with alcohol for almost ten years before his death. But, further than this, it was averred, and not denied, that the testator, when he executed the will and codicils, was afflicted with locomotor

property. On the first branch we sustain the court in refusing an issue, not because the decree is clearly right, but because it is not clearly wrong. The evidence of incapacity, taken altogether, is not of that weight which should constrain us to send the case to a jury.

father would leave his brother Hampton in good circumstances, Florence replied, "He mustn't be too sure of that, because I have got something to say in the matter." Then, about four months after the father's death, he asked Florence what chance his brothers and sisters would have to break the will, and he replied: "They didn't have the least possible show on earth; that he had things too well fixed for that." Virginia B Winston, the daughter, testified that in 1881 Florence made a proposition to her to join him in a conspiracy to have the other brothers disinherited, which she refused. Sarah Outlaw, a servant, testified that she had frequently heard Florence say that he could do anything he pleased with his father. Nine witnesses, interested and disinterested, give like testimony, tending to show the extent of the influence obtained by Florence over his father from a time antedating the will until his death. "Where the testator, although possessed of testamentary capacity, yet is aged, infirm bodily, with mental faculties impaired, if his confidential adviser be largely a beneficiary under the will, there is a presumption of fact that undue influence was brought to bear on the mind of the testator, and the burden is on the beneficiary to rebut this presumption. Wilson v. Mitchell, 101 Pa. 495; Armor's Estate, 154 Pa. 517. If, in aid of this presumption, many witnesses testify to positive acts and express declarations indicating the unscrupulous intention of the confidant to exe:t his influence in his own favor, can it be said that there is no case for a jury?

The next question is, Was the will procured by undue influence exerted over the testator by his son Florence C. Miller? This is a question of pure fact. As is said in Herster v. Herster, 116 Pa. 612: "Its disposition properly rests with the jury alone. Even if the trial judge should feel that, were he sitting as a juror, he could not regard the evidence as sufficient to induce him to find a verdict against the will, that is not enough to justify him in taking the case entirely from the jury.. If the testimony is such that after a fair and impartial trial resulting in a verdict against the proponents of the alleged will, the trial judge, after a careful review of all the testimony, would feel constrained to set aside the verdict as contrary to the manifest weight of the evidence, it can not be said that a dispute, within the meaning of the act, has arisen. On the other hand, if the state of the evidence is such that the judge would not feel constrained to set aside the verdict, the dispute should be considered substantial, and an issue to determine it should be directed. It is perhaps well to say that undue influence may be exercised secretly as well as openly, and this is especially possible where a confidential relation exists between the principal devisee and the testator, and they dwell together in the same house." This is the Many reputable witnesses were called by substance of our authorities in Pennsylvania proponent, and heard by the court, whose evion the subject. Take now the undisputed evidence tended to establish a degree of sobriety dence as to testator's age, habits, and disease on part of testator; that he correctly transacted at the date of the will and codicils; what is legal business for his clients; and that when the reasonable inference to be drawn as to his they saw him he was not under the influence testamentary capacity? Can it be of that order of liquor, and conversed intelligently. The which it undoubtedly was twenty or thirty effect of their testimony was to show that ceryears before his death, and before it had be- tainly, at times, testator was not incapacitated come impaired by age, drunkenness, and phy-to make a valid testament, and it properly had sical infirmity? Assuming, as we do assume, with the court below, that testamentary capacity existed, and that, if voluntarily and independently exercised, testator was competent to make a valid will, yet was the capacity such as, by reason of its impairment, it could easily be operated upon by outside influence? Then follow the facts that Florence C., the son, lived in the house with his father, was his confidant for years, close to his person, his helper in his physical infirmities, his adviser in his business affairs. Then come to the gross inequalities in the distribution of the large estate. The confidant is largely the beneficiary. Next notice the affirmative tes timony of the witnesses. B. F. Young testified that he frequently saw Florence with his father when the latter was intoxicated. Once, on the cars from Uniontown to Pittsburg, he says, "I spoke to Florence in reference to the old man's condition at the time, and asked him why he alone always accompanied the old gentleman in that condition. He answered, at the same time striking his chest with his hand, that there was boodle in it for him." Further on, after stating that he had remarked to Florence that he supposed his

great weight with the court on this branch of the case. But it tended only in a slight degree to negative the testimony of contestant adduced to show the undue influence exerted by Florence over his father. The court treats the evidence of the brothers and sisters as deserving of little credit, because of their interest; but it must be borne in mind that on ques tions of this kind the members of testator's family, and the inmates of his home, are generally the only witnesses who have every opportunity to observe the relations between the maker of a will and him whose unlawful influence procures it. Their interest may affect their credibility, but, if they had no interest, they would seldom be in a situation to know anything material to the issue. The learned judge also denies the credibility of the disinterested witnesses, and arrives at his conclusions by practically disregarding the testimony of both classes, interested and disinterested. But it was peculiarly the province of the jury to pass on the credibility of these witnesses, as has been held over and over. The learned judge does not take up the evidence and determine whether there is a substantial dispute demanding an issue, but

NEW YORK COURT OF APPEALS.

2. Grandsons, each of whom is entitled to the income of a share of a trust estate until he becomes thirty-five years of age, and then to the full payment of that share, if living, otherwise payment to be made to his descendants, if any, and if none, then to the other NOTE.-As to rights of life tenants and remain- | Hite v. Hite (Ky.) 19 L. R. A. 173; and Pritchett v. dermen in respect to stock dividends, see Spooner Nashville Trust Co. (Tenn.) 33 L. R. A. 856. v. Phillips (Conn.) 16 L. R. A. 461, and note; also