§ 330. The Degree of Testamentary Capacity Required Varies According to Conditions.

It has been variously said that less capacity is required to make a valid will than is required to execute any other

legal instrument,15 that no greater mental capacity is required to make a valid will than to make a valid deed,16 or that less mental capacity is required to make a will than to make a contract with those who deal with the party at arm's length.17 Comparisons of such nature are most difficult since it requires us to distinguish between two unknown quantities which are subject to infinite variations. A man may purchase a pound of coffee from his grocer; that is a business dealing, yet it could not be compared to a transaction covering the sale of extensive properties involving millions of dollars. A man may have but little property, its extent being so limited and its value so small that the entire situation may be easily understood by one of but slight intelligence. He may make his will and leave everything to his wife or children. Such a transaction could not be compared to one requiring the testamentary disposition of an estate of great

Kinne v. Johnson, 60 Barb. (N. Y.) 69.

Compare: Duffield v. Robeson, 2 Har. (Del.) 375, 379; Sutton v. Sutton, 5 Har. (Del.) 459; Townsend v. Bogart, 5 Redf. Sur. (N. Y.) 93, 105.

15 Matter of Halbert's Will, 15 Misc. Rep. 308, 37 N. Y. Supp. 757; Matter of Seagrist's Will, 1 App. Div. 615, 37 N. Y. Supp. 496; Matter of Armstrong's Will, 55 Misc. Rep. 487, 106 N. Y. Supp. 671; Matter of Browning's Will, 80 Misc. Rep. 619, 142 N. Y. Supp. 683; In re Carpenter's Will, 145 N. Y. Supp. 365, 370.

16 Allen v. North, 271 Ill. 190, 110 N. E. 1027; Stewart's Exr. v.

Lispenard, 26 Wend. (N. Y.) 255; Matter of Halbert's Will, 15 Misc. Rep. 308, 37 N. Y. Supp. 757; Matter of Sutherland's Will, 28 Misc. Rep. 424, 59 N. Y. Supp. 989; In re Carpenter's Will, 145 N. Y. Supp. 365, 371.

17 Slaughter v. Heath, 127 Ga. 747, 57 S. E. 69, 27 L. R. A. (N. S.) 1; Greene v. Greene, 145 Ill. 264, 33 N. E. 941; Ring v. Lawless, 190 Ill. 520, 60 N. E. 881; People v. Baskin, 254 Ill. 509, 98 N. E. 957; Hammond v. Dike, 42 Minn. 273, 44 N. W. 61, 18 Am. St. Rep. 503; Schleiderer v. Gergen, (In re Latto's Estate) 129 Minn. 248, 152 N. W. 541.

value, of properties widely scattered, with devises and bequests in trust and to charities, and with many relations who might justly claim to be entitled to remembrance.18

§ 331. A Weak Mind Is Not Inconsistent With Testamentary Capacity.

It is not required that a testator be of perfect understanding in order that his will may have validity, nor will it be upheld merely because some understanding exists. A sound mind is a disposing mind; one who has the mental capacity to make a will is said to be of sound mind.19 This, however, does not comprehend a perfect mind, or one free from all infirmities. Soundness of mind, as used in the law of wills, means merely that intelligence necessary to make a valid testamentary disposition of property. Where a mind exists, it may be weak or strong, but the difference is only in the extent and power of its faculties. Testamentary capacity may exist in either case. It has been said that the test of a perfect capacity is where the individual talks and discourses rationally and sensibly and is fully capable of any rational act requiring thought, judgment and reflection. But a sound mind is not determined by how well a man may talk or reason, the soundness of his judgment, or

18 Coleman v. Marshall, 263 Ill. 320, 104 N. E. 1042; Murphy v. Nett, 47 Mont. 38, 130 Pac. 451.

It requires somewhat greater capacity to dispose of a large and diversified estate among numerous recipients with various gradations of claims, than it does to dispose of a small and simple estate among the members of one's own

immediate family.-Trish v. Newell, 62 Ill. 196, 14 Am. Rep. 79; Schleiderer V. Gergen (In re Latto's Estate) 129 Minn. 248, 152 N. W. 541; Sheldon v. Dow, 1 Demarest Sur. (N. Y.) 503; In re Silverthorn, 68 Wis. 372, 32 N. W.

287.

19 Allen v. North, 271 Ill. 190, 110 N. E. 1027.

the propriety of his actions. The question is not how well he may talk and act, but can he talk and act rationally and sensibly, has he mind and reason, has he thought, judgment and reflection? Incapacity is more than weak capacity. Mental weakness is not inconsistent with testamentary capacity, and mere feebleness of mind does not suffice to invalidate a will if the testator acted freely, and had sufficient mind to comprehend intelligently the nature and effect of the act he was performing, the estate he was undertaking to dispose of, and the relations he held to the various persons who might naturally expect to become the objects of his bounty.20

20 Rodney v. Burton, 4 Boyce (27 Del.) 171, 86 Atl. 826; Greene v. Greene, 145 Ill. 264, 33 N. E. 941; People v. Baskin, 254 Ill. 509, 98 N. E. 957; Roller v. Kling, 150 Ind. 159, 49 N. E. 948; Holmes v. Campbell College, 87 Kan. 597, Ann. Cas. 1914A, 475, 41 L. R. A. (N. S.) 1126, 125 Pac. 25; In re Craven's Will, 169 N. C. 561, 86 S. E. 587; Reichenbach v. Ruddach, 127 Pa. St. 564, 18 Atl. 432.

In Newhouse v. Godwin, 17 Barb. (N. Y.) 236, the court says: "The weak have the same rights with the prudent or strong minded to dispose of their property."

Forgetfulness and slight delusions do not establish lack of capacity to make a will.-In re Carpenter's Will, 145 N. Y. Supp. 365, 372; Children's Aid Society v. Loveridge, 70 N. Y. 387.

The effect of mental disorders upon the capacity of the afflicted to make a will having so long

been the subject of the most careful judicial consideration, the rules on the subject must be regarded as settled. Thus it is that in courts of probate, though a man may have lapses of memory and show childishness at times, if he can manage his affairs prudently and correctly, show a due appreciation of the nature and amount of his property and of the claims of near and dear relations, his testamentary capacity is sufficient. --Kinleside v. Harrison, 2 Phillim. 449; Haughian v. Conlan, 86 App. Div. 290, 83 N. Y. Supp. 830; In re Campbell's Will, 136 N. Y. Supp. 1086, 1097; Loder v. Whelpley, 111 N. Y. 239, 250, 18 N. E. 874.

Impairment of memory of testator is generally not a ground for rejecting & will.-Philpott V. Jones, 164 Iowa 730, 146 N. W. 859; Matter of McGraw's Will, 9 App. Div. 372, 41 N. Y. Supp. 481; Matter of Gihon's Will, 44 App.

§ 332. Ability to Transact Business Not a True Test of Testa

mentary Capacity.

Minute and intelligent attention to business affairs is admissible on an issue of testamentary capacity.21 But a testator may have capacity to make a valid will, although not able to make contracts or manage his estate.22 He may not have sufficient mind and vigor of intellect to transact business generally, or to make and digest ali the parts of a contract, and yet be competent to direct the distribution of his property by will. The question is whether the testator's mind and memory are sufficiently sound to enable him to understand the business in which

Div. 621, 60 N. Y. Supp. 65; Id., 163 N. Y. 595, 57 N. E. 1110; In re Carpenter's Will, 145 N. Y. Supp. 365, 371; Horn v. Pullman, 72 N. Y. 269.

21 Billings Appeal, 49 Conn. 456. Compare: Brewer v. Barrett, 58 Md. 587.

Ability to transact ordinary business properly is strong evidence of testamentary capacity.-Matter of Birdsall's Will, 2 Con. Sur. 433, 13 N. Y. Supp. 421; In re Carpenter's Will, 145 N. Y. Supp. 365, 372.

The fact that a testator supervised his own large estate wisely, benevolently, and prudently until his death is evidence of the fact that he understood the condition of his property. In re Campbell's Will, 136 N. Y. Supp. 1086, 1096.

One who is mentally capable of transacting business is ordinarily competent to make a will.-Spier

v. Spier (In re Spier's Estate), 99 Neb. 853, 157 N. W. 1014, L. R. A. 1916E, 692.

22 Kramer v. Weinert, 81 Ala. 414, 1 So. 26; Greene v. Greene, 145 Ill. 264, 33 N. E. 941; People v. Baskin, 254 Ill. 509, 98 N. E. 957; Coleman v. Marshall, 263 Ill. 330, 104 N. E. 1042; Brinkman v. Rueggesick, 71 Mo. 553; Clarke v. Sawyer, 3 Sandf. Ch. (N. Y.) 351; Matter of Seagrist's Will, 1 App. Div. 615, 37 N. Y. Supp. 496: Matter of Browning's Will, 80 Misc. Rep. 619, 142 N. Y. Supp. 683; In re Carpenter's Will, 145 N. Y. Supp. 365, 371.

Mere grammatical errors of misuse of words which may be accounted for on the ground of mere inadvertence, do not show want of testamentary capacity.State v. Goodman, 133 Tenn. 375, 181 S. W. 312.