A treatise on medical jurisprudence / by Francis Wharton and Moreton Stillé ; the medical part revised and corrected, with numerous additions by Alfred Stillé.

  • Francis Wharton
Date:
1860
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Licence: Public Domain Mark

Credit: A treatise on medical jurisprudence / by Francis Wharton and Moreton Stillé ; the medical part revised and corrected, with numerous additions by Alfred Stillé. Source: Wellcome Collection.

Provider: This material has been provided by the National Library of Medicine (U.S.), through the Medical Heritage Library. The original may be consulted at the National Library of Medicine (U.S.)

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    BOOK I.] CAPACITY TO MAKE WILLS AND TESTAMENTS. [§ 34 3d. Lucid Inter mis.{ee) § 33. Of course, a person who is actually at the time a lunatic, cannot bind himself civilly, and so far as this, there is no ground for discussion. When a party is once proved to have been at the time insane, all question is at an end. The difficulty, however, is to the fact of time. Unless what in the courts has been called habitual insanity be shown, i. e., such insanity as is, in its nature, continuous and chronic, the fact of the existence of a prior period of lunacy does not suffice even to throw the burden of proof on the party setting up competency.(/) The case, however, is otherwise when such habitual in- sanity is shown to have existed; in which case the presumption is that the party was insane at the time, and the burthen is on those seeking to prove the contrary.(ff) If you can establish, says Sir Wm. Wynne, as cited by Mr. Jarman,(V/) that the party afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act; that being proved, is sufficient, and the general habitual insanity will not affect it; but the effect of it is this : it inverts the order of proof and presumption ; for, until proof of habitual insanity, the presumption is, the party agent, like all human creatures, was rational ; but when an habitual insanity in the mind of the person who does the act is established, then the party who would take advantage of the fact of an interval of reason must prove it. And in a recent Massachusetts case, Dewey, J., said, Neither observation nor experience shows us that persons who are insane from the effect of some violent disease, do not usually recover the right use of their mental faculties. Such cases are not unusual, and the return of a sound mind may be anticipated from the subsiding or removal of the disease which has prostrated their minds. It is not, therefore, to be stated as an unqualified maxim of the law, ' once insane, presumed to be always insane;' but reference must be had to the peculiar circumstances connected with the insanity of an individual, in deciding upon its effects upon the burthen of proof, or how far it may authorize the jury to infer that the same condition or state of mind attaches to the individual at a later period. There must be kept in view the distinction between the inferences to be drawn from proof of an habitual or apparently confirmed insanity, and that which may be only temporary.(h) § 34. In case of idiocy, a slightly different rule seems laid down. Thus, in a late case, the evidence showed that the deceased was, in 1815, placed in con- finement as a lunatic, and there remained till 1817, when he was released. In 1820, about which time he was proved to have committed certain rational acts of business, (hh) he made a rational will. In 1822 he was again placed in confinement, and so remained till his death, in 1849. In 1833 he was found (ee) See for the psychological view of this question, post, § 254. (/) Ackey v. Stephens, 8 Ind. 411 ; Menkins v. Lightner, 18 III. 282. (ff) Ibid. Hoge v. Fisher, 1 P. C. C. R. 163 ; Whitenack v. Strykee, 1 Green, C. R. 8 ; Harrison v. Rowan, 3 W. C. C. R. 580 ; Gable v. Grant, 2 Green, C. R. 629 ; Stevens v. Vancleve, 4 Wash. C. C. R. 262; Jackson v. Vandusen, 5 Johns. 144; Kelly v. Webster, 8 Shep. 46 ; 1 Jarm. on Wills (2d Am. ed.), 65. (g) 1 Jarm. on Wills (2d Am. ed.), 65. (/<) Hix v. Whittemore, 4 Mete. 545. (Mi) See ante, § 7.
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