Thomas, J.
This case is before us on the report of the presiding judge. At the time of the execution of the instrument offered for probate, the testator was under guardianship, as an insane person. The presiding judge ruled that, under this state of facts, the burden of proof was upon the party seeking probate of the will, to show that, at the time of its execution, the testator was of sound mind. The verdict was that the testator was of unsound mind. If the ruling of the presiding judge was erroneous, the verdict is to be set aside; if right, judgment is to be entered on the verdict.
When one dies owning real or personal estate, the law fixes its descent and distribution. Under certain conditions, however, it gives to such owner the power to make a disposition of his property, to take effect after his death. This is done by a last will and testament. To make such will, certain capacities are requisite in the maker, and certain formalities for its due execution.
The capacities of the maker are prescribed by the Rev, Sts. c. 62, §§ 1, 5. “ Every person of full age and of sound mind, being seized in his own right of any lands, &c. may devise and dispose of the same by his last will and testament in writing.” 11 Every person of full age and of sound mind may, by his last will and testament in writing, bequeath and dispose of all his personal estate, remaining at his decease, and, all his right thereto and interest therein.”
The formalities are prescribed by the sixth section of the same chapter. “ No will, excepting nuncupative wills, shall be effectual to pass any estate, whether real or personal, nor to charge, or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by bis express [527]*527direction, and attested and subscribed, in the presence of the tes* tator, by three or more competent witnesses.”
When, therefore, a will is offered for probate, to establish it, to entitle, it to such probate, it must be shown that the supposed testator had the requisite legal capacities to make the will, to wit, that he was of full age and of sound mind, and that in the making of it the requisite formalities have been observed. The heirs at law rest securely upon the statutes of descents and dis tribution, until some legal act has been done by which their rights under the statutes have been lost or impaired.
Upon whom, then, is the affirmative ? The party offering the will for probate says, in effect, This instrument was executed with the requisite formalities by one of full age and of sound mind; and he must prove it; and this is to be done, not by showing merely that the instrument was in writing, that it bears the signature of the deceased, and that it was attested in his presence by three witnesses; but also that it was signed by one capable of being a testator, one to whom the law had given the power of malting disposition of his property by will.
This is the doctrine of the earliest case upon the subject in our reports. Phelps v. Hartwell, 1 Mass. 71. It was there argued by the appellees that the burden of proof was with the appellants, opposing the will; and that it was incumbent on them to show that the testator was not of sound mind at the time of the making of the will. “ But the whole court held that the rule was the same in this case as in all others. The burden of proof is always with those who take the affirmative in pleading. Here the appellees have the affirmative, and must therefore produce reasonable and satisfactory evidence to the jury that the testator was sane at the time of making the will.” In Blaney v. Sargeant, in the same volume, it was held that the party wishing to establish the will, having the affirmative, was entitled to the opening and close. 1 Mass. 335. And such has been the uniform practice of this court.
These cases but recognize and confirm a familiar and well settled rule of pleading, as of logic, that he who affirms the existence of a given state of facts must prove it. There may be [528]*528different modes and instrumentalities of proof; but the burden is on him who affirms, and not on him who denies.
The doctrine of the case of Brooks v. Barrett, 7 Pick. 94, is doubtless, to some extent, in conflict with that of the earlier cases; and so it is, also, with that of the later; and as much of the confusion existing upon this subject may have arisen from that case, it may be well to examine it with some care.
In that case, as in Phelps v. Hartwell and Blaney v. Sargeant, it was held that the opening and close were with the executor, as the affirmative was with him. It was also said that “ by our statute of wills, all such instruments must be offered for proof in the probate office, and the subscribing witnesses are to be there produced; and these witnesses are to testify, not only as to the execution of the will, but as to the state of mind of the testator at the time. Without such proof, no will can be set up And this agrees with the English law on the same subject.” Thus far the case is in harmony with the earlier ones. The affirmative is upon the executor, and he is to produce the statute evidence to show not only the execution of the instrument, but “ the state of the mind of the testator at the time,” that is, of course, that it was in a sound state, capable of making a will; and, without such proof, no will can be set up. “ Upon an appeal from the decree of the judge of probate, allowing or rejecting the will, it is to be proved in the appellate court, in the same manner as if first offered there for probate.” The issue of sanity, however, in this court, is to the jury, and not to the presiding judge. Rev. Sts. c. 62, § 16. The party, then, offering the will in this court for probate, is to produce the attesting witnesses to show the soundness of the testator’s mind at the time of the execution of the will. Thus far all is plain.
But the court proceeded to say : “ Being proved, however, by the subscribing witnesses, both as to its execution and the sanity of the testator, the will is to be set up and allowed, unless the party objecting disproves the facts thus established. So that the burden of proof shifts from the executor to the heir or other person opposing the allowance of the will; but in this, as in all cases where there is an affirmative point to be made out [529]*529by one party, he is to open and close to the jury. If his own evidence, that of the subscribing witnesses, is deficient, he is to make out the affirmative from the whole case. If he makes out his case by the statute evidence, he has only to defend against the proof of insanity produced by the other party. And having produced the statute evidence, if the case is made doubtful by the evidence from the other side, the presumption of law in favor of sanity must have its effect in the final decision.” And the court added: “ The will having been sufficiently proved by the statute evidence, it was also rightly decided that the burden of proof in regard to insanity was upon the other party.”
We can perceive here no shifting of the burden of proof; the issue throughout is but one: Was the testator of sound mind ? And the affirmative of this was upon the party offering the will for probate. Again; that issue is an issue of fact, and is to the jury.
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Thomas, J.
This case is before us on the report of the presiding judge. At the time of the execution of the instrument offered for probate, the testator was under guardianship, as an insane person. The presiding judge ruled that, under this state of facts, the burden of proof was upon the party seeking probate of the will, to show that, at the time of its execution, the testator was of sound mind. The verdict was that the testator was of unsound mind. If the ruling of the presiding judge was erroneous, the verdict is to be set aside; if right, judgment is to be entered on the verdict.
When one dies owning real or personal estate, the law fixes its descent and distribution. Under certain conditions, however, it gives to such owner the power to make a disposition of his property, to take effect after his death. This is done by a last will and testament. To make such will, certain capacities are requisite in the maker, and certain formalities for its due execution.
The capacities of the maker are prescribed by the Rev, Sts. c. 62, §§ 1, 5. “ Every person of full age and of sound mind, being seized in his own right of any lands, &c. may devise and dispose of the same by his last will and testament in writing.” 11 Every person of full age and of sound mind may, by his last will and testament in writing, bequeath and dispose of all his personal estate, remaining at his decease, and, all his right thereto and interest therein.”
The formalities are prescribed by the sixth section of the same chapter. “ No will, excepting nuncupative wills, shall be effectual to pass any estate, whether real or personal, nor to charge, or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence and by bis express [527]*527direction, and attested and subscribed, in the presence of the tes* tator, by three or more competent witnesses.”
When, therefore, a will is offered for probate, to establish it, to entitle, it to such probate, it must be shown that the supposed testator had the requisite legal capacities to make the will, to wit, that he was of full age and of sound mind, and that in the making of it the requisite formalities have been observed. The heirs at law rest securely upon the statutes of descents and dis tribution, until some legal act has been done by which their rights under the statutes have been lost or impaired.
Upon whom, then, is the affirmative ? The party offering the will for probate says, in effect, This instrument was executed with the requisite formalities by one of full age and of sound mind; and he must prove it; and this is to be done, not by showing merely that the instrument was in writing, that it bears the signature of the deceased, and that it was attested in his presence by three witnesses; but also that it was signed by one capable of being a testator, one to whom the law had given the power of malting disposition of his property by will.
This is the doctrine of the earliest case upon the subject in our reports. Phelps v. Hartwell, 1 Mass. 71. It was there argued by the appellees that the burden of proof was with the appellants, opposing the will; and that it was incumbent on them to show that the testator was not of sound mind at the time of the making of the will. “ But the whole court held that the rule was the same in this case as in all others. The burden of proof is always with those who take the affirmative in pleading. Here the appellees have the affirmative, and must therefore produce reasonable and satisfactory evidence to the jury that the testator was sane at the time of making the will.” In Blaney v. Sargeant, in the same volume, it was held that the party wishing to establish the will, having the affirmative, was entitled to the opening and close. 1 Mass. 335. And such has been the uniform practice of this court.
These cases but recognize and confirm a familiar and well settled rule of pleading, as of logic, that he who affirms the existence of a given state of facts must prove it. There may be [528]*528different modes and instrumentalities of proof; but the burden is on him who affirms, and not on him who denies.
The doctrine of the case of Brooks v. Barrett, 7 Pick. 94, is doubtless, to some extent, in conflict with that of the earlier cases; and so it is, also, with that of the later; and as much of the confusion existing upon this subject may have arisen from that case, it may be well to examine it with some care.
In that case, as in Phelps v. Hartwell and Blaney v. Sargeant, it was held that the opening and close were with the executor, as the affirmative was with him. It was also said that “ by our statute of wills, all such instruments must be offered for proof in the probate office, and the subscribing witnesses are to be there produced; and these witnesses are to testify, not only as to the execution of the will, but as to the state of mind of the testator at the time. Without such proof, no will can be set up And this agrees with the English law on the same subject.” Thus far the case is in harmony with the earlier ones. The affirmative is upon the executor, and he is to produce the statute evidence to show not only the execution of the instrument, but “ the state of the mind of the testator at the time,” that is, of course, that it was in a sound state, capable of making a will; and, without such proof, no will can be set up. “ Upon an appeal from the decree of the judge of probate, allowing or rejecting the will, it is to be proved in the appellate court, in the same manner as if first offered there for probate.” The issue of sanity, however, in this court, is to the jury, and not to the presiding judge. Rev. Sts. c. 62, § 16. The party, then, offering the will in this court for probate, is to produce the attesting witnesses to show the soundness of the testator’s mind at the time of the execution of the will. Thus far all is plain.
But the court proceeded to say : “ Being proved, however, by the subscribing witnesses, both as to its execution and the sanity of the testator, the will is to be set up and allowed, unless the party objecting disproves the facts thus established. So that the burden of proof shifts from the executor to the heir or other person opposing the allowance of the will; but in this, as in all cases where there is an affirmative point to be made out [529]*529by one party, he is to open and close to the jury. If his own evidence, that of the subscribing witnesses, is deficient, he is to make out the affirmative from the whole case. If he makes out his case by the statute evidence, he has only to defend against the proof of insanity produced by the other party. And having produced the statute evidence, if the case is made doubtful by the evidence from the other side, the presumption of law in favor of sanity must have its effect in the final decision.” And the court added: “ The will having been sufficiently proved by the statute evidence, it was also rightly decided that the burden of proof in regard to insanity was upon the other party.”
We can perceive here no shifting of the burden of proof; the issue throughout is but one: Was the testator of sound mind ? And the affirmative of this was upon the party offering the will for probate. Again; that issue is an issue of fact, and is to the jury. And how is the court to determine when the will is <l proved ” or “ sufficiently proved ” by the subscribing witnesses, “ so that the burden of proof shifts from the executor to the heir?” It is a question of the effect of evidence, and could only be solved by probing the mind of each juror. Suppose the attesting witnesses are divided in opinion; one for the sanity of the testator, one against, the other doubtful; or that two testify against the sanity of the testator, and the third that he was of sound mind, and the jury place greater confidence in the means of observation, intelligence, judgment and integrity of the one than of the other two ; or that all three testify (a case not without precedent), so far .as it is matter of opinion, in favor of the sanity of the testator, yet, in view of all the facts and the circumstances detailed by the same witnesses, the jury reach a very different conclusion. If there could be a shifting of the burden upon a single issue, it would be impossible to tell when the burden is to be transferred from the one party to the other.
It is quite difficult to understand what was meant by the court when they said, that “ if he [the executor] makes out his case by the statute evidence, he has only to defend against the proof of insanity produced by the other party.” The law has made no further distinction between the attesting and other wit[530]*530nesses, than that the opinions of the former may be given in evidence; and even this distinction does not extend to professional witnesses. If the three attesting witnesses, being comparative strangers to the testator, and called in for the mere purpose of witnessing the will, testify that, so far as they saw, the testator was of sound mind ; and the attending physicians;, familiar with the facts and with the history of the party, testify that he was insane ; the law attaches no peculiar weight to the testimony of the former as against the latter. Still less does it give it any such preponderance as to shift the burden of proof. The issue, after the evidence is all in, is precisely the same that it was at the beginning— Was the testator of sound mind? — an issue in its very nature incapable of division.
If the court were to instruct the jury in the first place to examine and weigh by itself the testimony of the subscribing witnesses, and that, if they should find it sufficient, the burden of proof would shift upon those opposing the will, but, if deficient, it would remain with the executor, it would be compelling them to try the case twice; first, to learn where the burden of proof was, and then where the truth was; and they might be wholly unable to agree as to the weight to be given to the testimony of the subscribing witnesses, though they concurred in the result of the testimony as a whole. It not unfrequently occurs, in contested questions of sanity, that, when the evidence is all in, very little importance attaches to the testimony of the subscribing witnesses; because, from want of intelligence or opportunities of observation, they know very little of the matters in issue.
Nor, though the concurring testimony of the subscribing witnesses may make a prima facie case, is there any shifting of the burden of proof. The burden of proof does not shift when a prima facie case is made out. The remarks of Mr. Chief Justice Parker on this point, in the case we are considering, have not the usual discrimination of that most able and excellent judge. “ The shifting of the onus probandi,” he says, “ is quite familiar in the course of trials. In a suit upon a promissory note or other written contract, the plaintiff produces his note, proves the signature of the defendant, and stops; the defendant alleges [531]*531payment, want of consideration, or other matter in defence, the burden of proof is upon him, and yet the plaintiff opens and closes the argument.”
Things quite distinct are here confounded; want of consideration and payment. Without a consideration there is no contract. The question, therefore, whether there was a consideration, is but a form of the question whether a contract was ever made. The burden does not shift. The production of the note, with the signature of the defendant, makes a prima facie case against him; and when no evidence is offered to the contrary, the plaintiff will of course prevail. But when evidence is offered by the defendant, and, it may be, in reply by the plaintiff, it all applies to one and the same issue_—Was there a consideration? if not, there was no contract. And the burden remains throughout upon him who affirms that a contract was made. This is now well settled. Tourtellot v. Rosebrook, 11 Met. 460. Delano v. Bartlett, 6 Cush. 364.
But the plea of payment raises a new and distinct issue. It confesses the original contract, and seeks to avoid it. It affirms a subsequent independent fact, the fact of payment, and he who affirms it must prove it. It is a new issue made by the defendant. The burden is on him. And if he fails to prove his averment, and the plaintiff has proved his, the result is that the contract is proved, but its performance or discharge is not proved, and the plaintiff recovers. And see Powers v. Russell, 13 Pick. 69.
The ground taken by the counsel of the appellees is, that every man is presumed to be sane till the contrary is shown, and that the burden is cast upon those who impeach the sanity.
If such presumption exists at all in respect to wills, it does not apply to the case of one under guardianship, as an insane person. Such guardianship is prima facie evidence of insanity. Stone v. Damon, 12 Mass. 488. Breed v. Pratt, 18 Pick. 115.
Nor does the existence of a general presumption that men are sane change the burden of proof. It may stand in the stead of proof; it may make a prima facie case ; where the question of sanity is made, it may render necessary greater weight of [532]*532evidence in, him who seeks to impeach it; but it does not change the burden of proof. But when the evidence is in, on the one side and the other, the issue still continues as before; and he, to whose case the proof of such sanity is necessary, has the burden. To use the language of the court in Powers v. Russell: “ Where the proof on both sides applies to one and the same proposition of fact, the party, whose case requires the proof of that fact, has all along the burden of proof; though the weight in either scale may at times preponderate.” 13 Pick. 76.
But we are by no means satisfied that, in relation to wills, there is any legal presumption, in this commonwealth, of the sanity of the testator. If such presumption exists, no proof that the testator was of sound mind would be necessary, until those opposing the will had offered some evidence to impeach it. The presumption of sanity would be sufficient, until there was something to meet it. Yet our cases uniformly hold that the party seeking probate of the will must produce the attesting witnesses to show not merely the execution of the instrument, but the sanity of the testator at the time of its execution. Phelps v. Hartwell, Blaney v. Sargeant, and Barrett v. Brooks, above cited. Buckminster v. Perry, 4 Mass. 593. And such has been, we think, the uniform practice in the probate courts, and in this court sitting as the supreme court of probate. These cases were decided, and this practice grew up, under the explicit language of the St. of 1783, c. 24, § 1, which provided that “ every person lawfully seized of any lands, &c., of the age of twenty one years and upwards, and of sane mind, shall have power to give, dispose of and devise the same.” The language of the Revised Statutes is to the same effect: “ Every person of full age and of sound mind.” Rev. Sts. c. 62, §§ 1, 5.
There are strong reasons why the same presumption as to sanity should not attach to wills as to deeds and ordinary contracts. Wills are supposed to be made in extremis. In point of fact, a large proportion of them are made when the mind is to some extent enfeebled by sickness or old age. It is for this reason, that the execution of the will and the proof of its execution are invested with more solemnity; the statute requiring it [533]*533to be attested by three or more competent witnesses; making void all beneficial devises, legacies or gifts to such subscribing witnesses; and requiring the presence of the three in the probate court for its proof, unless it appears by consent in writing of the hens at law, or other satisfactory evidence, that no person interested intends to object to the probate of the will. Rev. Sts. c. 62, §§ 6, 8, 15. We»speak of what seems to be the rule in this commonwealth, under the St. of 1783, c. 24, and the Rev. Sts. c. 62.
There is, no doubt, both conflict and confusion in the authorities on this point, both in England and in this country. A general legal presumption doubtless exists, that a man is sane, till there is evidence to the contrary; and upon proof of the execution of a contract, or of a deed, no proof need be given that the maker was of sound mind when he executed it. The presumption is sufficient, until evidence is produced to meet. it. This presumption has often been applied to the proof of wills, but not in our own courts. Nor is the rule elsewhere uniform.
In the case of Gerrish v. Nason, 22 Maine, 441, the court say. “ The presumption, that the person making the will was at the time sane, is not the same as in the case of the making of other instruments; but the sanity must be proved.”
In Comstock v. Hadlyme, 8 Conn. 261, the court say: “ Those who claim under the will must take upon themselves the burden of proof; and they must not only prove that the will was formally executed, but that the testator was of sound and disposing mind.”
In the recent case of Barry v. Butlin, before the Judicial Committee of the Privy Council, Mr. Baron Parke, in pronouncing the judgment, says : u The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present appeal; and they have been acquiesced in on both sides. These rules are two; the first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.” 1 Curt Eccl. 638.
[534]*534If there were uniformity in the English decisions, which there certainly is not, we should not overlook the difference between the English statute of wills, 34 H. 8, c. 5, and our own. Our own provides that “ every person of full age and of sound mind ” may make a will; making these capacities, of full age and sanity, of the nature of conditions precedent. The St. of H. 8 enacts, in § 4, that “ all and singular person or persons having estate or interest in fee simple, &c. in lands, &c. shall have full and free liberty, to give, dispose, will or devise to any person or persons, &c. by his last will and testament in writing, as much as in him of right is or shall be, his said lands, &c. at his own free will and pleasure;” and then, by § 14, provides that “wills or testaments made of any lands, &c. by any woman covert, or person within the age of twenty one years, or by any person de non same memory, shall not be taken to be good or effectual in the law; ” thus making, in the first place, a general provision applicable to all persons whatsoever, and then excepting out of its operation, and making ineffectual, wills of persons of non-sane memory. If, therefore, it were the uniform construction of this statute that when a will was produced, and its due execution proved, it was to be taken to be good and effectual, unless for some of the causes stated in the fourteenth section it was shown not to be good or effectual, it would furnish no precedent for the construction of our own statute, which in terms limits the power to persons of full age and sound mind.
On the whole matter, we are of opinion, that where a will is offered for probate, the burden of proof, in this commonwealth, is on the executor or other person seeking such probate, to show that the testator was, at the time of its execution, of sound mind; that if the general presumption of sanity, applicable to other contracts, is to be applied to wills, it does not change the burden of proof; that the burden of proof does not shift in the progress of the trial, the issue throughout being one and the same ; and that if, upon the whole evidence, it is left uncertain whether the testator was of sound mind or not, then it is left uncertain whether there was under the statute a person capable of making the will, and the will cannot be proved.
Judgment on the verdict.