the will was the direct offspring of the delusion, no one can deny. We therefore have the precise condition of the monomaniac."

4. FIDELITY OF HUSBAND or WIFE.

The fact that one spouse entertains a belief unwarranted by the facts that the other has been unfaithful to his or her marital obligation of chastity does not necessarily establish the existence of an insane delusion. If such a belief is based on some facts or grounds for suspicion, however they may be magnified by a credulous or jealous disposition, it does not destroy testamentary capacity. In re Scott, 128 Cal. 57, 60 Pac. 527; Johnson v. Johnson, 105 Md. 81, 65 Atl. 918, 121 Am. St. Rep. 570; Thayer v. Thayer (Mich.) 154 N. W. 32; American Seamen's Friend Soc. v. Hopper, 33 N. Y. 619; Coit v. Patchen, 77 N. Y. 533; In re Gannon, 2 Misc. 329, 21 N. Y. S. 960; Potter v. Jones, 20 Ore. 239, 25 Pac. 769, 12 L.R.A. 161; Foster v. Dickerson, 64 Vt. 233, 24 Atl. 253; Cole's Will, 49 Wis. 179, 5 N. W. 346. In the case of Scott, supra, it was said: "There is no evidence in the record from which the court could find that the contestant was ever unfaithful to his wife or that he ever made any attempt or had any thought to poison her, or to cause her to be placed in an insane asylum. The court, however, was not authorized to hold that she was under an insane delusion in reference to these propositions unless it was satisfied, from the evidence before it, not only that these charges against him were without any foundation in fact, but also that there was no evidence of any facts brought to her knowledge from which she might form a belief, however irrational or inconclusive it might be, in the existence of the acts or purposes with which she charged him, and, in addition thereto, that she did in fact believe that he was guilty thereof." So in Cole's Will, 49 Wis. 179, 5 N. W. 346, it was said: "It must be conceded that the belief of deceased in respect to the unchastity of his wife, persisted in as it was without evidence to support it and against all reasonable probabilities of its truth, looks very much like insane delusion. Yet it is not necessarily so. Observation teaches us that there is a very large class of people, whose sanity is undoubted, who are unduly jealous or suspicious of others, and especially of those closely connected with them, and who, upon the most trivial, even whimsical grounds, will wrongfully impute the worst motives and conduct to those in whom they ought to confide. This insanity, which is developed in a great variety of forms, is altogether too common, and too many persons confessedly sane are to a greater or less extent afflicted with it, to justify us in saying that because the deceased was so afflicted he

was insane, or the victim of insane delusion. The line between the unfounded and unreasonable suspicions of a sane mind (for doubtless there are such) and insane delusion is sometimes quite indistinct and difficult to be defined. However, the legal presumption is in favor of sanity, and on the issue of sanity or insanity the burden is upon him who asserts insanity, to prove it. Hence, in a doubtful case, unless there appears a preponderance of proof of mental unsoundness, the issue should be found the other way." In Phillips v. Chater, 1 Dem. (N. Y.) 533, the court said: "Now, does his behavior, in connection with those divorce proceedings, tend to establish the existence of an 'insane delusion' touching the purity of his wife? There are many circumstances, some trivial, some important, which lead to the contrary conclusion. Several of the witnesses, for example, testified to a certain freedom of intercourse between Mrs. Phillips and army offi. cers stationed at posts where her husband was assigned for duty. Her conduct was thoroughly innocent, for aught that is established by the evidence, but it sometimes occasioned remark, and always angered the decedent, who was apparently of an inordinately jealous disposition. The intimacy between Auris and his wife was another circumstance which may very likely have excited a mind constituted like his, and the statements which Auris and the detective made, as to what took place after the former returned from the theatre with Mrs. Phillips, might well have furnished reasonable ground for his distrust. I certainly do not mean to intimate, in the least, that there was any just foundation for such vile suspicions, but simply to assert that the existence of the suspicions, under all the circumstances, may have been quite consistent with the decedent's sanity. What is an 'insane delusion?' Bouvier, in his law dictionary, defines a 'delusion' to be 'a diseased state of the mind, in which persons believe things to exist which exist only in their own imaginations, with a persuasion so fixed and firm that neither evidence nor argument can convince them to the contrary.' Tried by this standard, I can find no warrant in the evidence for holding that Dr. Phillips was suffering from any delusion whatever in relation to his wife. He does not, indeed, seem to have been constant in his opinion of her infidelity, for on several occasions he was apparently in the state of mind which was illustrated by his remark to the witness Grant, that 'sometimes he believed it, and at others he could not.' This is by no means the condition of a monomaniac such as he is claimed to have been. 'A sane man in error,' says Wharton, 'retains the power of doubting; not the madman' (Med. Juris. 4th ed. sec. 727)." In Potter v. Jones, 20 Ore. 239,

25 Pac. 769, 12 L.R.A. 161, it was said: "Tested by these definitions, can it be said, upon facts as disclosed by this record, that the testator was beset with an insane delusion in respect to the legitimacy of the contestant and her brother? The circumstances which he relates, and upon which his belief is founded, fix the place, identify the person and the manner of the improper meeting, and there is no evidence to show, nor is there any attempt to deny, that there was such a place or person or that such a meeting might not have occurred, only that the adulterous purpose which he ascribed and professed to believe to be the object of such meeting was so absolutely inconsistent with her known character for chastity as to be utterly unworthy of belief and only to be accounted for in him upon the theory of an unnatural dislike or aversion which amounted to an insane delusion. The evidence in contradiction of his belief proceeds on the assumption that there may have been such a place and man and meeting; and if so, her known character for chastity, her every-day walk and life, render it impossible that it could have occurred for the foul purposes which he Imputes, or otherwise than accidentally and without concert or evil design in thought or deed. But these facts, however falsely or unjustly he may have reasoned from them, or however absurd his conclusions, as applied to the wife and contestant impugned by them, nevertheless furnished the evidence which inspired his suspicions and the ground upon which his belief was founded. It is conceded that the conclusions he drew from the facts are wholly unwarranted and without any justification, indicating at least an unrelenting jealous disposition; but unjust and absurd as they may be, they were not the pure creations of a perverted imagination, without any foundation in reality. Delusions are conceptions that originate spontaneously in the mind without evidence of any kind to support them, and can be accounted for on no reasonable hypothesis. The mind that is so disordered imagines something to exist or imputes the existence of an offense which no rational person would believe to exist or to have been committed without some kind of evidence to support it. They are as baseless as the fabric of a dream conjured into existence by a disordered or perverted imagination, without any sort of foundation of fact. As in Smee v. Smee, 5 P. D. (Eng.) 84, the testator imagined himself to be the son of George IV., and that when he was born a large sum of money had been put in his father's hands for him, but which his father, in fraud of his rights, had distributed to his brothers; or, as in Smith v. Tebbitt, L. R. 1 P. & D. (Eng. 398, the testatrix imagined herself to be one of the persons of the Trinity,

Ann. Cas. 1916C.-2.

and her chief legatee to be another. In cases like these the belief is the offspring of a disordered mind, and not induced by the existence of any facts or occurrences which could lend any sort of countenance to it. The case at bar is not such. Here there is a claim of facts upon which the belief is founded, and unjust and unfeeling as may be such belief, in view of the known character of his wife for chastity, it is not the spontaneous product of pure fancy, but a grave error, showing a lack of judgment or a want of reasoning powers-the outcome of an oversensitive, jealous disposition, prone to exaggerate any trifling circumstance with which his wife may be connected into an unworthy and wicked importance, and to draw from them conclusions untenable, illogical and unworthy of belief. ... To support the contention for the contestant, the belief or suspicion the testator entertained of his wife's infidelity and the illegitimacy of the children to be an insane delusion, must have been wholly without foundation in reality, and the mere figment of his perverted imagination. But the evidence discloses that it was formed on an apparent cause, leading on his part to a view of his wife's conduct, which we have admitted was erroneous, unjust, and unnatural, yet this only shows an unfortunate error of judgment or a want of reasoning power, but not an absolute want of intellect upon the subject. The conclusion which he drew from the facts was untenable and erroneous, and showed that he formed a bad judgment upon an insufficient state of facts, but does not show that his conclusion or belief was formed without any foundation in fact whatever." So it was said in Coit v. Patchen, 77 N. Y. 533. "The proof certainly does not establish the infidelity of the husband; and it may therefore be assumed that the deceased acted upon an unfounded suspicion as to his fidelity. But as other causes, as we have seen, co-operated to influence her judgment and action, which may have been sufficient to account for her discrimination as to him in making her will, it cannot, we think, be said that this act of itself was conclusive upon the question of insane delusion."

But if such a belief arises spontaneously in the mind of the testator without any basis in fact and is held as a fixed conviction it constitutes an insane delusion. Haines v. Hayden, 95 Mich. 332, 54 N. W. 911, 35 Am. St. Rep. 566; In re Gannan, 2 Misc. 329, 21 N. Y. S. 960; In re Long, 43 Misc. 560, 89 N. Y. S. 555. And see Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118. In the case of In re Jenkins, 39 Misc. 618, 80 N. Y. S. 664, it was said: "Shortly after their marriage he began to talk with neighbors and friends about his wife's infidelity, and, up

to the time of his death, made untrue allegations as to her character. The evidence emphasizes the fact, however, that during her entire life in the neighborhood where she lived her reputation for chastity was good, and no suspicions were held against her. Untrue reports were circulated only by her husband. People with whom he talked endeavored to persuade him that he was mistaken, and insisted that his accusations against his wife were the creations of his own imagination; but, in opposition to evidence and argument, he asserted in positive terms that his wife was guilty of immoral acts. A person has a delusion who believes that a certain state of affairs exists which in fact does not, and which can only be accounted for as the result of a perverted imagination, without cause or evidence. Applying these definitions to the facts in this case, it cannot be argued that testator had a mistaken belief or an unreasonable prejudice. It went beyond these. It was an insane delusion."

.

5. PATERNITY OF CHILD.

A false belief by a testator that one of his children is illegitimate, being of course closely related to a similar belief in the infidelity of his wife (discussed in the preceding subdivision), is governed by the same rules and does not constitute an insane delusion if it exists as a conclusion illogically or unreasonably drawn from facts. Johnson v. Johnson, 105 Md. 81, 65 Atl. 918, 121 Am. St. Rep. 570; O'Dell v. Goff, 149 Mich. 152, 112 N. W. 736, 119 Am. St. Rep. 662, 10 L.R.A. (N.S.) 989; Thayer v. Thayer (Mich.) 154 N. W. 32; Potter v. Jones, 20 Ore. 239, 25 Pac. 769, 12 L.R.A. 161. And see Smith v. Smith, 48 N. J. Eq. 566, 25 Atl. 11, wherein it was held on a review of the evidence that the testator's denial of the legitimacy of his child was a wilful falsehood and not a delusion. In Clapp v. Fullerton, 34 N. Y. 190, 90 Am. Dec. 681, it was said: "It was also insisted, that, aside from the issue of imbecility, the testator was disqualified by lunacy. claim rested on the assumption, that during the last year of his life, he was laboring under an insane delusion as to the legitimacy of his elder daughter To sustain the allegation, it is not sufficient to show that his suspicion in this respect was not well founded. It is quite apparent, from the evidence, that his distrust of the fidelity of his wife was really groundless and unjust; but it does not follow, that his doubts evince a condition of lunacy. The right of a testator to dispose of his estate, depends neither on the justice of his prejudices, nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or

This

fraud, the law gives effect to his will, though its provisions are unreasonable and unjust. . . . The testator, in view of his own approaching end, very naturally recurred to the circumstances attending the death of his first wife, which had been the most marked event in his own family history. He unfortunately recalled a declaration made by her on her deathbed, that the contestant, though born in wedlock, was not his daughter. He knew that it was uttered in the delirium of a fatal disease of the brain, but he permitted it to be a source of uneasiness and disquietude, until it made an impression on his mind, in his then feeble and morbid condition, which it had not produced when the incident occurred. He connected it with the circumstances of his occasional absence from home, during the first year of his married life, of her light-hearted youth and gayety, and of suspicions which had fallen upon some who had been early associates of the family; and he was thus led to apprehend, that her statement, though made when she was delirious, was more significant than he had deemed it at the time. He admitted, that he had attached no importance to the declaration, when it was made, and expressed his surprise, that it had not impressed him more deeply. He spoke of it, however, only to his nearest relatives, and evidently appreciated the embarrassment and delicacy of alluding to it at all. He continued to refer to Mrs. Fullerton in terms of kindness and affection, acknowledged that he did not, and could not know that she was not legitimate, and declared, that he should always continue to claim and treat her as his daughter. It is manifest, that his original judgment was right. He dismissed the delirious expression of his wife, as of no moment, when all the circumstances were fresh, and his mind healthy and vigorbut when his affection for her had waned, with the lapse of time, and he was no longer able to recall the grounds of his former confidence in her fidelity, the recollection of the incident produced undue impression on a mind enfeebled by age and disease. The fact should be referred to weakness and credulity, rather than to insane delusion." So in the case of In re Smith, 24 N. Y. S. 928, it was said: "It is beyond question that he believed that the contestant was not his child, and that such belief was without foundation in fact. But was this belief the creature of his imagination? I cannot but believe from the evidence that 'the stories' which were in circulation had much to do with this belief. The gossip of the neighborhood had lodged in his mind a position, the venom of which, in his sober hours, he was able to restrain, but which, when reason was driven out by rum, exhibited itself in the charge of unchastity of his

ous;

wife. It must be remembered that on the first occasion in which she says he mentioned the matter to her he said he had heard that Henry was not his child. The continued repetition of this charge for years in drunkenness produced such an effect upon his mind that he came at last to believe it, and at length he reveals his convictions to his priest. Thus the element of a delusion, a belief existing without cause other than the imagination of the deluded, is wanting. The other element of a delusion-that it must be belief maintained in opposition to evidence and argument that would convince the ordinary mind of its falsity-is also wanting. So far as the evidence in this case goes, it does not appear that the wife whose chastity was impugned, nor the good priest to whom he went for advice, made any attempt by argument or evidence to convince him of his error. It must be apparent that if Owen Smith heard the report that contestant was not his child, and that report was true, he labored under no delusion in regard to the matter. If the report was not true, it was still evidence upon which he could act, however unjust and mistaken his action might be, without rendering what he did the result of insanity. If no such report was heard by him, and he never believed his wife to have been untrue to him, then he can be accused of depravity, not of insanity. Upon all the evidence I cannot escape the conclusion that at the time of the execution of the instruments offered for probate Owen Smith was not the subject of a delusion in regard to the paternity of the contestant, and the instruments must, therefore, be admitted to probate." In the case of In re Bennett, 201 Pa. St. 485, 51 Atl. 336, the court said: "But all delusions are not insane delusions. A man may, from information given him, believe that his son is dead, when, in point of fact, the son is alive. The father's belief is a delusion; and if, when his son appears to him in person and explains that the information was false, the father persists in thinking him dead, his belief becomes an insane delusion. The difference between the two species is that one is the product of the reason, and the other a figment of the imagination. The belief of the testator rested upon very practical realities-upon confessions, oral and written, made to him and repeated to others, and upon other circumstances which we need not narrate, but which were almost as convincing as confessions. We do not say whether, in our judgment, the confessions were true or false, or whether the circumstances were or were not misleading; but we do say that both were of a character which might fairly persuade a sensible man to the belief which they induced in the testator. He acted under this conviction just as any sane man would have act

ed; he became for a time indifferent as to his personal appearance, and moody and reserved in his manner; and these very natural expressions of rational grief are sought to be tortured into exhibitions of madness."

But the belief of a testator that one of his children is illegitimate may be so baseless as to constitute an insane delusion. Drinkhouse's Estate, 14 Phila. (Pa.) 291, 38 Leg. Int. 214; Bell v. Lee, 28 Grant Ch. (U. C.) 150. In Morgan v. Morgan, 30 App. Cas. (D. C.) 436, 13 Ann. Cas. 1037, it was said: "Had there been evidence showing that there was no possible foundation for the impeachment of the mother's chastity before the birth of those children, and that the statements made to the testator of her misconduct were false and had been maliciously made, yet if, in the absence of such proof, the testator believed them to be true and acted under that belief, it still could not be said that he was the victim of an insane delusion. That condition could only be shown by evidence that proof of their falsity, which no sane mind could fairly reject, had been furnished him, notwithstanding which he clung to his unfounded opinion and acted in accordance with it. So in Layer v. Layer, 110 Ky. 542, 62 S. W. 15, the court said: "It is hard to understand how a father could treat his only son in the manner described by a number of witnesses in this record, unless we credit the testimony of the repeated declarations of this man that he was not the father of the boy. There seems to have been absolutely no ground for this belief, which was so exhibited in the conduct of the father as to impress upon the boy's mind the idea that he was an adopted child. There was also some proof of insanity in other members of testator's family, and that he had once set out to drown himself. Independently of the opinions of the witnesses, the jury, on the testimony for appellant, might well have inferred that the testator labored under an insane delusion that he was not the father of appellant, and for that reason left him out in his will. It is true there was testimony for the appellees from which the jury might have drawn the opposite conclusions; but the credibility of the witnesses was to be determined by the jury under proper instructions, and this court is not the tribunal in which it may be decided." In Florey v. Florey, 24 Ala. 241, it was held that the fact that the testator, a white man married to a white woman, believed the principal beneficiary, a negro, to be his son was sufficient to go to the jury on the issue of testamentary capacity.

IV. Influence of Delusion on Testamentary Disposition.

In a few early English cases it was said that the mind is a unit and that an insane

delusion on any subject, however disconnected from the testator's disposition of his estate, deprives him of testamentary capacity. Waring v. Waring, 6 Moo. P. C. 341; Smith v. Tebbitt, L. R. 1 P. & D. 398, 36 L. J. P. 97, 16 W. R. 18. However, the doctrine of those cases was repudiated in Banks v. Goodfellow, L. R. 5 Q. B. 549 (followed in Murfett v. Smith, 12 P. D. 116, 57 L. T. N. S. 498 and Smee v. Smee, 5 P. D. 84, 49 L. J. P. 8). And in the United States it has been held uniformly that an insane delusion as to a relative of the testator does not invalidate a will unless the disposition therein made of the testator's estate is materially influenced by the delusion to which he is subject. Florey v. Florey, 24 Ala. 241; Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; In re Kendrick, 130 Cal. 360, 62 Pac. 605; Lucas v. Parsons, 24 Ga. 640, 71 Am. Dec. 147; Zinkula v. Zinkula (Ia.) 154 N. W. 158; Gesell v. Baugher, 100 Md. 677, 60 Atl. 481; Johnson v. Johnson, 105 Md. 81, 65 Atl. 918, 121 Am. St. Rep. 570; Fraser v. Jennison, 42 Mich. 231, 3 N. W. 882; Rivard v. Rivard, 109 Mich. 98, 66 N. W. 681, 63 Am. St. Rep. 566; In re Forman, 54 Barb. (N. Y.) 274; Colhoun v. Jones, 2 Redf. (N. Y.) 34; In re Hart (Pa.) 89 Atl. 816. "Even a monomaniac may make a valid will if the delusion has no relation to the subject or object of the will, or the persons who would be likely, ordinarily, to be the recipients of his bounty." In re Lang, 9 Misc. 521, 30 N. Y. S. 388. In Lathrop v. American Board of Foreign Missions, 67 Barb. (N. Y.) 590, it was said: "A monomaniac may undoubtedly make a valid will if the delusion which affects the general soundness of his mind has no relation to the subject or object of the will, or the persons who would otherwise be likely, ordinarily, to be the recipients of his bounty; or where, as Judge Gridley states the rule in Stanton v. Wetherwax, 16 Barb. 263, 'the provisions of the will are entirely unconnected with, and of course uninfluenced by, the particular delusions.'" So it was said in Sayre v. Princeton University, 192 Mo. 95, 90 S. W. 787: "Medical men of great learning maintain that a mind diseased on one subject must be classed as unsound, but the law of this State is too well settled to be gainsaid that a man's mind may be impaired in one faculty and practically unimpaired in all others. Derangement of mental faculties does not incapacitate one under our laws from making a will, if it does not render him unable to transact his ordinary business, and incapable of understanding the extent of his property and of appreciating the natural objects of his bounty."

A delusion on the part of a testator that he has been told something derogatory to a relative does not invalidate his will if he

does not believe the supposed statement to be true. In re Bartels (Tex.) 164 S. W. 859, wherein the court said: "The only evidence of any insane delusion on the part of Mrs. Bartels is the testimony as to her statement that Mrs. Sonet had told her that Mrs. Milam would poison her. Mrs. Sonet did not make this statement, and, if Mrs. Bartels believed that she had made such statement, she was under a delusion. But, conceding this to be true, the undisputed evidence is that Mrs. Bartels, whenever she mentioned the matter, stated that she did not believe that Mrs. Milam would poison her, and the fact, which is also shown by the undisputed evidence, that she allowed Mrs. Milam to prepare her meals for her, and always waited for her to prepare and bring her meals to her, conclusively shows that she did not believe the statement in regard to Mrs. Milam. This being so, her delusion as to Mrs. Sonet having made the statement could not possibly have influenced her bequest to Mrs. Milam."

A will is not invalidated by a delusion of the testator with respect to a relative who is provided for with reasonable liberality by the will. Rice v. Rice, 50 Mich. 448, 15 N. W. 545; In re Iredale, 53 App. Div. 45, 65 N. Y. S. 533; Cole's Will, 49 Wis. 179, 5 N. W. 346. In the case first cited, it was said: "But the existence of a delusion that his wife was unworthy of esteem, or was abusing him, would be a singular reason for setting aside a gift which he had deliberately made in her favor." In Skinner v. Farquharsan, 32 Can. Sup. Ct. 58, reversing 33 Novia Scotia 261, it was held that a delusion that the testator's wife and son had been guilty of a heinous crime would not be deemed to have affected his will, it appearing that after the delusion was entertained he reduced the bequests theretofore made to them, but still left to each of them a liberal amount. The court said: "If the deceased's delusions had influenced the disposal of his property, the respondent's contention should perhaps prevail. But that is a question of fact. And twelve average men could not, reasonably, but come to the conclusion that if that had been the case, if he had had present to his mind, when he went to his solicitor, that his wife was the vile, loathsome creature that he intermittingly had believed her to be, if that had been the impulsive cause of his making a new will, he would not, by that new will, have appointed her guardian of his children and one of his executors, besides bequeathing to her and his son a substantial amount of his property. Such dispositions cannot have been the offspring or result of this delusion. On the contrary the inference from them is that the delusion cannot have been in actual operation at the time when he made them. Then