ascertain what days are holidays, we must look to the statutes providing for such days. This added clause to $ 2 is of no more significance than the title of the act itself, and no more limits the liquor act than does that title. That title, as passed in 1865 and since continued in all the acts, is, "To designate the holidays to be observed in the acceptance and payment of bills of exchange and promissory notes, in the holding of courts and relative to the continuance of suits." In Reithmiller v. People, 44 Mich. 280, the respondent was convicted of an illegal sale of liquor on Christmas Day, it being alleged that the day was a legal holiday on which such sales were forbidden. The con

or President of the United States as a day of fasting and prayer or thanksgiving, shall for all purposes whatsoever as regards the presenting for payment or acceptance and of the protesting and giving notice of the dishonor of bills of exchange, bank checks, and promissory notes made after the passage of this act, also for the holding of courts, be treated and considered as the first day of the week, commonly called Sunday," etc. This act was amended in 1875, in 1881, and by act No. 77, Pub. Acts 1893. Section 1 of the amendatory act of 1893 also includes other days designated as legal holidays in addition to those enumerated in the act of 1865, and further provides that, "in case any of the holidays shall fall upon a Sun-viction was sustained. The court in speaking day, then the Monday following shall be considered as the said holiday." This last provision was first introduced into the statute by act No. 163, Laws 1875, and has continued therein to the present time, unless it may be said that there is a limitation placed upon it by act No. 185, Pub. Acts 1893 (which was an act passed later in the session of that year than act No. 77), again amending § 1 of the act and adding a new section.

of the liquor statute said: "It is true that the statute does not enact in so many words that any specified day shall be a holiday. But that is not important. The past and present provisions concerning privileged days, including this act of 1879, are to our present purpose in pari materia, and are to be considered together, and the identical days contemplated by the legislature may be ascertained by such examination." The court said further: "Were It will be seen that, at the time the liquor Christmas Day to be excluded on the ground law of 1879 was passed, the statute as to legal contended for, it would follow unavoidably holidays provided that, "in case any of the that nothing could be retained to answer to the holidays shall fall upon a Sunday, then the call for legal holidays.' The ground taken Monday following shall be considered as said for excluding Christmas would, according to holiday;" so that the legal holidays upon which the necessary meaning of the context, equally all saloons, etc., were to be kept closed, in- exclude all other days possibly capable of be cluded such Mondays, which were made by ing classed under the head of legal holidays,' the act legal holidays. This continued up to and leave nothing whatever for that phrase to the time act No. 185, Pub. Acts 1893, took apply to." In People v. Ackerman, 80 Mich. effect. By the 1st section of the act, the 1st 588, the respondent was convicted of keeping day of January, 22d day of February, 30th day open a saloon on April 30, 1889. That day of May, 4th day of July, 1st Monday of Sep- had been designated by the governor as a day tember (called Labor Day), and the 25th day of of thanksgiving and prayer. It was known as December are designated as holidays. Section Centennial Day. It was held that this was a 1 also provides that every Saturday, from 12 legal holiday, within the meaning of § 17, Pub. o'clock noon until 12 o'clock at night, shall be Acts 1887, as fixed by the statutes defining designated a half holiday; and the same section legal holidays. That clause 2 of the act of strikes out from the act the proviso that, in 1893 cannot be given the construction concase any of the holidays shall fall upon a Sun- tended for by counsel is made more apparent day, the Monday following shall be considered when we examine the provisions of § 1, makas the said holiday. In 2 is inserted the fol- ing Saturday afternoons half holidays for cerlowing: "Whenever the 1st day of January, tain purposes, as, in the latter part of the the 22d day of February, the 30th day of May, section, it is provided that "nothing herein the 4th day of July, or the 25th day of Decem-contained shall be construed to prevent or inber shall fall upon Sunday, the next Monday following shall be deemed a public holiday for all or any of the purposes aforesaid." Counsel for respondent contends that the words "for any or all of the purposes aforesaid" are words of limitation upon the act, so that a Monday following a legal holiday can be treated as a holiday only for the purposes specified in that act, and that, therefore, such a Monday is not a legal holiday, in contemplation of the liquor statute. By 17 of the liquor statute, here tofore quoted, saloons, etc, must be closed on all holidays. This statute does not provide that any specified day shall be a holiday. To 39 L. R. A.

validate the entry, issuance, service, or execution of any writ, summons, or confession of judgment or other legal process whatever, holding courts, or the transaction of any lawful business, except banking, on any of the Saturday afternoons herein designated as half holidays." So that on those half holidays any lawful business may be carried on, except such as is specifically designated in that section.

The conviction must be affirmed, and the court below is directed to proceed to judgment. The other Justices concur.

PENNSYLVANIA SUPREME COURT.

A will is not rendered invalid by the mere fact that the testator was under the influence of liquor when it was made; to have avoided it the mind And drunkenness does not necessarily take away must have been in such a condition that the testa-la testator's capacity to make a will. Turner v.

to show that for some time before it was made the testator had been addicted to the use of in

toxicants to an unusual degree; and that the son to whom he gave three fourths of his property was always with him when he was intoxicated, and bad, said there was boodle in it for him; and that he had deliberately prejudiced his father

against the other children and ingratiated himself in his favor, although he was not actually present when the will was made.

4. Evidence tending to show testamentary incapacity is admissible upon the question of undue influence in the obtaining of the will, although it may be insufficient to show want of capacity to make the will.

(Mitchell and Fell, JJ., dissent.)

(January 4, 1897.)

APPEAL by Alexander H. Miller from a decree of the Orphans' Court for Allegheny County dismissing his petition for an appeal from an order of the register of wills admitting to probate the alleged will of Alexander H. Miller, deceased. Reversed.

The facts sufficiently appear in the opinion. Messrs. Edward Campbell, Lazear & Orr, W. H. Tomlinson, and Charles E. Hogg, for appellant:

Where there is a substantial dispute upon a material question of fact an issue devisavit vel non is a matter of right, and the test of substantiality in the dispute is that a verdict could be supported by the trial judge, upon a review of all the evidence adduced.

Sharpless's Estate, 134 Pa. 250; Knauss's Ap

Cheesman, 15 N. J. Eq. 243; Whitenack v. Stryker, 2 | and the distribution that is made by the will, N. J. Eq. 8.

And mere drunkenness upon the part of a testator does not affect the validity of his will unless it absolutely disables him from disposing of his estate with intelligence and reason. Starrett v. Douglass, 2 Yeates, 48.

The question to be determined with relation to habits of intoxication of the testator, as well as with relation to his insanity, is whether his mind was so affected that he was not sufficiently master of himself to give expression to his real wishes. Re Johnson, 7 Misc. 220.

though he was addicted to the excessive use of intoxicating liquors, and to some extent his indulgence had impaired his mental and physical powers and contributed to the degradation of his moral character. Bannister v. Jackson, 45 N. J. Eq. 702.

And one whose mind was so weakened by habits of intoxication that he could not conserve his estate may nevertheless make a valid will where he could recollect its nature and extent and those for whom he naturally would provide. Re Johnson,7 Misc. 220. And a will made by one whose habitual and excessive indulgence in strong drink had not produced a mental derangement sufficient to destroy mental capacity is valid if at the very moment of the execution thereof he was not intoxicated to such a degree as to destroy his faculties or pervert his judgment. Bannister v. Jackson, 45 N. J. Eq.

And a person whose intemperance has grown into a confirmed habit, and whose constitution is gradually giving away, may make a valid gift in the nature of a testamentary disposition when he is sober at the time, unless his indulgence has resulted in a settled derangement of mind indepen-702; Hennessey v. Woulfe, 49 La. Ann. 1376. dent of the immediate influence of drink. Gardner v. Gardner, 22 Weud. 526, 34 Am. Dec. 340.

To invalidate a will upon the ground of the intoxication of the testatrix, it must appear, not only that she was intoxicated or that she was usually intoxicated, but also that she was so in fact at the very time the will was executed, 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.

A person addicted to intemperance and subject to consequent fits of derangement may make a will if he be compos mentis at the time. Hebert v. Winn, 24 La. Ann. 385.

And habitual excessive indulgence in strong drink upon the part of a testator will not affect the validity of his will where it has not produced fixed mental disease sufficient to render him unable to comprehend the property he is about to dispose of, the objects of his bounty, the meaning of the busi

Habitual intoxication will not incapacitate a tes-ness in which he is engaged, the relation of each of tator to make a will unless the excitement was such as to disorder his faculties or pervert his judgment. Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220; Houster v. Lightner, 42 Phila. Leg. Int. 289.

It must have been carried to the extent of intoxication generally or at the time of making the will. O'Neil v. Murray, 4 Bradf. 311.

these factors to the others, and the distribution that is made by the will, and at the very moment of the execution of the document he is not so intoxicated as to disorder his faculties or pervert his judgment. Bannister v. Jackson, 45 N. J. Eq. 702, Affirming 46 N. J. Eq. 593.

And the will of an habitual drunkard who was And it will not invalidate his will where his mind not properly a madman, but who while under the was not so affected thereby as to render him inca- excitement of liquor acted in all respects like one, pable of comprehending the condition of his prop-will be upheld where he was not under the exciteerty, or the relation of the objects of his bounty, or the scope and bearings of the provisions of his will. Re McLaughlin, 2 Redf. 504.

ment of liquor at the time he made it. Ayrey v. Hill, 2 Add. Eccl. Rep. 206.

So, habits of drunkenness do not affect a man's So, old age, failure of memory, and drunkenness capacity to make a will where he was not intoxido not of themselves necessarily take away a testa-cated when he made it, though his habits were the tor's capacity to make a will; it may still be valid if cause of the disease of which he died. Kahl v. he retain sufficient capacity to understand the Schober, 35 N. J. Eq. 461. business in which he was engaged. Whitenack v. Stryker, 2 N. J. Eq. 8.

Neither old age, weakness, failure of memory, eccentricities, intemperance, nor ill temper will invalidate a will if the testator knew the nature of his property and understood to whom and in what manner he wished to dispose of it. Philadelphia Trust & 8. D. Co. v. Drinkhouse, 17 Phila. 23.

And a will is valid where the testator when he made it could comprehend the property he was about to dispose of, the objects of his bounty, the meaning of the business in which he was engaged, the relation of each of these factors to the others,

And a will made at the request of a testator, which was his voluntary and spontaneous act, not under constraint and free from force or fraud and from imposition or importunity, is valid though the testator was proved to have been addicted to drink, and to have had delirium tremens a few days before, and though it was drawn up by one of the devisees at the devisee's house. Handley v. Stacey, 1 Fost. & F. 574.

III. Drunkenness as evidence of incapacity. a. Generally.

Drunkenness, as has been seen, does not of itself,

peal, 114 Pa. 20; Armor's Estate, 154 Pa. | he drank as much as a pint, and often a quart,

517.

of whisky a day, keeping it at his own house in large quantities, and at his office in bottles. The appellant's evidence further shows that the alleged testator was so weakened in body and mind by the inordinate use of whisky as to render him practically unable to transact business requiring thought, care, and judg

A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposi tion he desires to make of it, and of the persons and objects he desires shall be the recip-ment. ients of his bounty.

Wilson v. Mitchell, 101 Pa. 495; Shaver v. McCarthy, 110 Pa. 339; Knauss's Appeal, 114 Pa. 10.

The evidence of appellant shows a great and inordinate use of alcoholic liquors by an aged man, the moderate use thereof beginning as early as 1862 or 1863; that from 1878 or 1879

and as a matter of law, destroy testamentary capacity. It is a mere matter of evidence upon the question of its existence or nonexistence. Re Harrigan, Myr. Prob. 135.

Thus, in stating the grounds of contest in a proceeding to contest a will on the ground of the unsoundness of mind of the testator induced by habits of intoxication, it is sufficient to state that the testator was not at the time of sound and disposing mind. Unsoundness is the ultimate fact to be found, and acts of inebriety are to go to the jury from which unsoundness may be found. Re Gharky, 57 Cal. 274.

So, whether habits of inebriety upon the part of a testator had the effect to render his mind unsound either permanently or temporarily covering the time of the execution of his will, so as to affect its validity, is a question for the jury. Re Johnson, 57 Cal. 529.

And a finding of the court below that a testator was of sound and disposing mind will not be disturbed on appeal where there was some evidence to sustain it, though there was other evidence tending to show that for twenty years he had been addicted to the excessive use of intoxicating liquors and had been for years a noted drunkard. Re Johnson, 57 Cal. 529.

Nor is mere evidence of the habitual use of liquors to excess by the testator alone sufficient to establish testamentary incapacity. Weisman's Estate, 45 Phila. Leg. Int. 274.

And occasional fits of intemperance are not evidence of a want of capacity on the part of a testator to dispose of his estate. Violet's Will, 1 Bibb, 617.

So, evidence that a testator was very nervous, weak, and suffering from mental and physical prostration at the time of making his will, due to over stimulation, will not justify the submission of the issue of testamentary capacity to a jury where there is nothing to show an inability to comprehend the nature and character of the testamentary power or of its exercise, and it appears that shortly afterwards he made the statement that he had changed his will stating the change made accurately. Harmony Lodge, I. O. O. F.'s Appeal, 127 Pa. 269.

And evidence that a testator originally possessed a strong will which might have been weakened somewhat by disease and dissipation, and that he was frequently drunk and generally ill-natured and stubborn, is insufficient to warrant the submission of the issue of testamentary capacity to the jury. McPherson's Appeal (Pa.) 9 Cent. Rep. 408.

b. In connection with conduct and condition. Occasional or habitual fits of intemperance, and want of domestic management, and generally bad conduct on the part of a testator, do not show testamentary incapacity. Harper's Will, 4 Bibb, 244.

The appellant's evidence shows great failure of memory by the alleged testator at the time of and prior to the making of the will and codicils, as well as subsequent thereto.

There is also disclosed by the evidence of the appellant a marked change in the affections, disposition, and habits of the alleged testator, at the time of and prior to and subse

Nor are frequent sleepiness, flightiness, and violent outbreaks of passion, resulting from excessive use of intoxicating drinks and narcotics, alone, sufficient. McCullough's Will, 35 Pittsb. L. J. 169.

And the presumption of the sanity of a testator is not rebutted by proof that his intellect was greatly impaired by the use of opium and ardent spirits, and that in consequence thereof he was frequently incapable of transacting business, in the absence of proof that such was his condition at the time the will was executed. Temple v. Temple, 1 Hen, & M. 476.

So, evidence of habitual drunkenness, old age, weakness of body, shortness of memory and a few incoherent expressions is not sufficient to establish testamentary incapacity. Hight v. Wilson, 1 U. S. 1 Dall. 94, 1 L. ed. 51.

Nor is evidence that the testator was old, intemperate, and irascible. Keating's Appeal, 19 Pittsb. L. J. N. S. 283. And see Whitenack v. Styker, 2 N. J. Eq. 8; and Philadelphia Trust Co. v. Drinkhouse, 17 Phila. 23, supra, II.

And evidence of habits of intemperance upon the part of a testator, and that he was occasionally wild and violent from the effects of intoxicating drink, and that his mind was undoubtedly impaired and weakened, and that capacity may have been temporarily suspended, is not sufficient to establish a total and permanent want of testamentary capacity. Julke v. Adam, 1 Redf. 454.

So, a will will not be set aside on proof that the testator at times acted with whimsical and ridiculous levity, where this was accounted for and attributable to fits of intemperance, and the evidence shows that he acted with a firm, collected, and efficient mind in the framing and execution thereof, and that his mind was sufficient to entitle him to the right of disposing of his property by will. Violet's Will, 1 Bibb, 617.

And one who transacts his own business, and keeps his own accounts, and makes his own returns for the assessment of taxes, is not insane so as to be incapable of making a will, though he was a drunken man and played drunken pranks. Billinghurst v. Vickers, 1 Phillim. Eccl. Rep. 193.

And a will is not invalidated by the fact that the testator was a dissipated man and had indulged in a protracted debauch for five days before that on which he signed it, where he is not shown to have committed any extravagances or to have exhibited any insane conduct on that day, except to indulge in improper and profane language as intemperate men will do, and the persons who were present at the very time the act was done, one of whom was from previous knowledge and present observation eminently competent to speak, saw nothing in him indicating a want of ordinary intelligence or entire sanity, and there was nothing extravagant or unreasonable in the will. Peck v. Cary, 27 N. Y. 9, 84 Am. Dec. 220.

quent to the execution of the will in question | cases of this character to receive and consider and codicils thereto. expert evidence.

And evidence as to long-continued habits of in-execution, that he possessed such sanity of mind as temperance on the part of a testator, and irrational conduct, and that for two years previous to his death he had been paralyzed on one side, and later had lost the power of intelligible speech, does not show testamentary incapacity as against evidence of the testator's neighbors who had known him for many years that he was of sound mind and memory, where it appears that the testimony as to his incapacity was extremely biased and in some respects false, and that a part of his property was bequeathed pursuant to an agreement that if the legatee would live with him and take care of him for life he would leave her his property after death. Re Tacke, 17 N. Y. S. R. 805.