Walker, J.
This was a proceeding originating in the Probate Court of Polk County, on application to probate a will of Hamilton Washington, dated June 6, 1868, to which was attached a codicil bearing the same date. To the probate of this will, Mrs. Mary H. Beazley, who was the sister of the testator, filed exceptions, and offered to probate a will of Hamilton Washington, dated [199]*199May 19, 1860. Such proceedings were herein had as have brought this case to us on appeal from the district court.
The case has been very ably argued before us, both upon the law and the facts. • Several grounds of error are assigned. It is claimed that the charge of the court is erroneous, and misled the jury; that the verdict of the jury is not in legal form, nor substantially sufficient in law; and that it is contrary to the evidence.
We shall remark upon the first and second assignments. In the charge of the court is contained this passage : “ Insanity or unsoundness of mind is that condition in which the mind is left when common sense and reason are destroyed or greatly impaired, and delusion exists. These delusions, which are the ordinary accompaniments, are evidences of insanity, and are extravagant or impossible things which do not exist at all, except in the imagination of the insane person, but which he cannot be - persuaded or convinced do not exist. The true test of the absence or presence of insanity'is the absence or presence of these delusions.”
This is simply learned sophistry. If insanity or unsoundness of mind is that condition of mind which exists when common sense and reason are greatly impaired, and delusion exists, then when delusion exists the mind is unsound, insane and destroyed. If the true test of the absence or presence of insanity is- the absence or presence of delusion, then insanity and delusion become the same thing; or at least are no more than different terms used to designate the same condition of mind. Tried by such a metaphysical or psychological test, Emanuel Swedenborg, John Wesley, Martin Luther, Joan of Arc, Joseph Addison, and the author of Basselas> Napoleon Bonaparte, and hundreds more of the greatest and soundest minds which ever existed on earth, must be declared insane. For each of these stoutly maintained what men of the present day would declare delusions. Indeód, delusion is so common that if the whole human family were tried by an infallible standard, there would be very few who could maintain absolute san[200]*200ity; and it is not improbable that the very few would be among the most assinine specimens of humanity. People do not now maintain a belief in visions, supernatural visitations, witches nor apparitions. They do not throw inkstands at the devil, nor do they believe that a vagrant palmist could foretell the fortunes of a creole girl, who, becoming the wife of one of the greatest men who ever lived on earth, thereby controlled his destiny.
But, in this age of science and metaphysical learning, it may be that a man of science might maintain that there was a certain amount of poison contained in the Irish potato, at a certain period of its growth; enough to affect the human stomach, if talen in too great a quantity; that a line of fascines, sunk in the bottom of a river which was changing its bottom by the washing sands, and altering its bed by the lodgment of drift, might be made to obstruct the navigation of a stream; that a drove of wild hogs, if confined in a field, and driven about from day to day, might become familiar to the presence of the driver, and be rendered tractable; that Indians were human beings on whom the attributes of kindness, mercy and charity might not be wasted. We say it might be possible that such theories and speculations might be called delusions, and yet be no evidence of an unsound mind.
Diugenes might live in his tub and hunt the streets of Athens at midnight for a Mir. Had he'hunted a Homo or an Anthropos, he might easily have found one; and if this had been properly understood, the eccentricity of the philosopher would have been understood as sound sense, conveyed under a most withering sarcasm against the frivolity of the Athenians. We think Diogenes had sufficient reason to have made a good will. .Alexander evidently thought him a man of sense, for he said: “ If I were not Aléxander, I should wish to be Diogenes.” Perhaps he might have sunk the Alexander, and yet lost nothing by becoming the Diogenes. ■
Fortunately the rules of law have become so well settled in [201]*201matters of this kind that we are not left to speculation or conjecture. We will proceed to give such'authorities as must render the rule a plain one. (See Redfield on the Law of Wills, part 1, 78, 79, 86, 8,1, 82, 83, 84, 85, 87, 88, 89, 90.)
“ Whenever it appears that the will is the direct offspring of the partial insanity or monomania under which the testator was laboring, it should he regarded as invalid, though his general capacity he unimpeached. (Potts v. House, 6 Ga., 324; Townsend v. Townsend, 7 Gill., 10.) This point is very happily illustrated by Mr. Justice Sergeant, Boyd v. Eby, 8 Watts, 71. (See, also, Leech v. Leech, 11 Penn. Law. J., 179.)
“ A somewhat remarkable opinion was delivered by Lord Brougham in an important case before the Privy Council, in which he takes the ground that any person laboring under delusion or monomania, to any extent or upon any subject, is not to be regarded as competent to execute a valid will. (See Waring v. Waring, 6 Moore, P. C. Cases, 349; S. C. 12 Jur., 947.) We have no apprehension that any such rule will permanently obtain currency in the English courts. It has certainly received no countenance in this country, and we should not be surprised if this opinion were never alluded to in the cases which shall hereafter occur in the English courts.
“ The most remarkable case of mere eecentrieity upon record, if it was such, is that of Morgan v. Boys, (see Taylor’s Med. Jour., 657, 1838,) where the'will was upheld on'the ground that there was no satisfactory proof of actual unsoundness of mind. The testator devised his property to a stranger, thus wholly disinheriting the heir or next of kin, and directed that his -executors should cause some parts of his bowels to be converted into fiddle-strings, that others should be sublimed into smelling salts, and that the remainder of his body should be' vitrified into lenses for optical purposes. In a letter attached to the will the testator said; The world may think this to be done in a spirit of singu[202]*202Iarity or whim, but I have a mortal aversion to funeral pomp, and I wish my body to be converted into purposes useful to mankind.’ The testator was shown to have conducted affairs with great shrewdness and ability; that so far from being imbecile he had always been regarded by his associates through life as a person of indisputable capacity. Sir Herbert Jenner Faust regarded the proof as not sufficient to establish insanity, it amounting to nothing more than eccentricity in his judgment. In another case, where the probate of will was resisted on the ground of insanity, and defended on plea of eccentricity, (see Mudway v. Croft, 3 Curtis, 678; Taylor, 658,) Sir H. J. Faust said: It is the prolonged departure, without an adequate external cause, from the state of feeling and modes of thinking usual to the individual when in health, that is the true feature of disorder of the mind.’ And in another case, where the will was declared invalid by the Prerogative Court of Canterbury, (see Austin v. Graham, 29 Eng. L.
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Walker, J.
This was a proceeding originating in the Probate Court of Polk County, on application to probate a will of Hamilton Washington, dated June 6, 1868, to which was attached a codicil bearing the same date. To the probate of this will, Mrs. Mary H. Beazley, who was the sister of the testator, filed exceptions, and offered to probate a will of Hamilton Washington, dated [199]*199May 19, 1860. Such proceedings were herein had as have brought this case to us on appeal from the district court.
The case has been very ably argued before us, both upon the law and the facts. • Several grounds of error are assigned. It is claimed that the charge of the court is erroneous, and misled the jury; that the verdict of the jury is not in legal form, nor substantially sufficient in law; and that it is contrary to the evidence.
We shall remark upon the first and second assignments. In the charge of the court is contained this passage : “ Insanity or unsoundness of mind is that condition in which the mind is left when common sense and reason are destroyed or greatly impaired, and delusion exists. These delusions, which are the ordinary accompaniments, are evidences of insanity, and are extravagant or impossible things which do not exist at all, except in the imagination of the insane person, but which he cannot be - persuaded or convinced do not exist. The true test of the absence or presence of insanity'is the absence or presence of these delusions.”
This is simply learned sophistry. If insanity or unsoundness of mind is that condition of mind which exists when common sense and reason are greatly impaired, and delusion exists, then when delusion exists the mind is unsound, insane and destroyed. If the true test of the absence or presence of insanity is- the absence or presence of delusion, then insanity and delusion become the same thing; or at least are no more than different terms used to designate the same condition of mind. Tried by such a metaphysical or psychological test, Emanuel Swedenborg, John Wesley, Martin Luther, Joan of Arc, Joseph Addison, and the author of Basselas> Napoleon Bonaparte, and hundreds more of the greatest and soundest minds which ever existed on earth, must be declared insane. For each of these stoutly maintained what men of the present day would declare delusions. Indeód, delusion is so common that if the whole human family were tried by an infallible standard, there would be very few who could maintain absolute san[200]*200ity; and it is not improbable that the very few would be among the most assinine specimens of humanity. People do not now maintain a belief in visions, supernatural visitations, witches nor apparitions. They do not throw inkstands at the devil, nor do they believe that a vagrant palmist could foretell the fortunes of a creole girl, who, becoming the wife of one of the greatest men who ever lived on earth, thereby controlled his destiny.
But, in this age of science and metaphysical learning, it may be that a man of science might maintain that there was a certain amount of poison contained in the Irish potato, at a certain period of its growth; enough to affect the human stomach, if talen in too great a quantity; that a line of fascines, sunk in the bottom of a river which was changing its bottom by the washing sands, and altering its bed by the lodgment of drift, might be made to obstruct the navigation of a stream; that a drove of wild hogs, if confined in a field, and driven about from day to day, might become familiar to the presence of the driver, and be rendered tractable; that Indians were human beings on whom the attributes of kindness, mercy and charity might not be wasted. We say it might be possible that such theories and speculations might be called delusions, and yet be no evidence of an unsound mind.
Diugenes might live in his tub and hunt the streets of Athens at midnight for a Mir. Had he'hunted a Homo or an Anthropos, he might easily have found one; and if this had been properly understood, the eccentricity of the philosopher would have been understood as sound sense, conveyed under a most withering sarcasm against the frivolity of the Athenians. We think Diogenes had sufficient reason to have made a good will. .Alexander evidently thought him a man of sense, for he said: “ If I were not Aléxander, I should wish to be Diogenes.” Perhaps he might have sunk the Alexander, and yet lost nothing by becoming the Diogenes. ■
Fortunately the rules of law have become so well settled in [201]*201matters of this kind that we are not left to speculation or conjecture. We will proceed to give such'authorities as must render the rule a plain one. (See Redfield on the Law of Wills, part 1, 78, 79, 86, 8,1, 82, 83, 84, 85, 87, 88, 89, 90.)
“ Whenever it appears that the will is the direct offspring of the partial insanity or monomania under which the testator was laboring, it should he regarded as invalid, though his general capacity he unimpeached. (Potts v. House, 6 Ga., 324; Townsend v. Townsend, 7 Gill., 10.) This point is very happily illustrated by Mr. Justice Sergeant, Boyd v. Eby, 8 Watts, 71. (See, also, Leech v. Leech, 11 Penn. Law. J., 179.)
“ A somewhat remarkable opinion was delivered by Lord Brougham in an important case before the Privy Council, in which he takes the ground that any person laboring under delusion or monomania, to any extent or upon any subject, is not to be regarded as competent to execute a valid will. (See Waring v. Waring, 6 Moore, P. C. Cases, 349; S. C. 12 Jur., 947.) We have no apprehension that any such rule will permanently obtain currency in the English courts. It has certainly received no countenance in this country, and we should not be surprised if this opinion were never alluded to in the cases which shall hereafter occur in the English courts.
“ The most remarkable case of mere eecentrieity upon record, if it was such, is that of Morgan v. Boys, (see Taylor’s Med. Jour., 657, 1838,) where the'will was upheld on'the ground that there was no satisfactory proof of actual unsoundness of mind. The testator devised his property to a stranger, thus wholly disinheriting the heir or next of kin, and directed that his -executors should cause some parts of his bowels to be converted into fiddle-strings, that others should be sublimed into smelling salts, and that the remainder of his body should be' vitrified into lenses for optical purposes. In a letter attached to the will the testator said; The world may think this to be done in a spirit of singu[202]*202Iarity or whim, but I have a mortal aversion to funeral pomp, and I wish my body to be converted into purposes useful to mankind.’ The testator was shown to have conducted affairs with great shrewdness and ability; that so far from being imbecile he had always been regarded by his associates through life as a person of indisputable capacity. Sir Herbert Jenner Faust regarded the proof as not sufficient to establish insanity, it amounting to nothing more than eccentricity in his judgment. In another case, where the probate of will was resisted on the ground of insanity, and defended on plea of eccentricity, (see Mudway v. Croft, 3 Curtis, 678; Taylor, 658,) Sir H. J. Faust said: It is the prolonged departure, without an adequate external cause, from the state of feeling and modes of thinking usual to the individual when in health, that is the true feature of disorder of the mind.’ And in another case, where the will was declared invalid by the Prerogative Court of Canterbury, (see Austin v. Graham, 29 Eng. L. and Eq., 38,) the decree was reversed on appeal by the judicial committee of the privy council. The testator was a native of England, but had lived in the East, and was familiar with eastern habits and superstitions, and professed his belief in the Mahometan religion. He died in England, leaving a will which, after various legacies, gave the residue to the poor of Constantinople, and also toward erecting a cenotaph in that city inscribed with his name and bearing a light continually burning therein. The prerogative court pronounced the testator to be unsound of mind, principally upon the ground of this extraordinary bequest, which sounded to folly, together with the wild and extravagant language of the testator, proved by parol. But on appeal it was held that, as the insanity attributed to the testator was not monomania, but general insanity or mental derangement, the proper mode of testing its existence was to review the life, habits and opinions of the testator, and on such a review there was nothing absurd or unnatural in the bequest, or anything in his conduct, at [203]*203the date of the will, indicating derangement, and it was therefore admitted to probate.
“A will maybe manifestly unjust to the surviving relatives of a testator, and it may display some of the extraordinary opinions of the individual, yet it will not necessarily be void, unless the testamentary dispositions dearly indicate that they have been formed under a delusion.
“In Tennessee it was held that a person who believed, in reference to a future state of existence, that there were degrees of happiness there, and that in whatever circle a man lived on earth he would move in the same sphere in future life; and that his pre-em- ■ inence there depended materially upon the amount of property he acquired here, and the charitable purposes to which he might have appropriated it—might make his will; and such opinions were no evidence of insanity. (See Gass v. Gass, 3 Humph., 278.) ‘ There is proof in the record ’ said the learned judge, ‘ tending to show that the testator held opinions somewhat peculiar in relation to futurity, to-wit: that there was degree in heaven; that whatever circle of life a man lived in on this earth would be enjoyed by him in heaven; that the pre-eminence there depended materially upon the amount of property he acquired here, and the charitable purposes to which he might have appropriated it.’ This, it is contended, is delusion, and the court was asked to charge that it was evidence of insanity sufficient to avoid the will.
11 If, then, delusion be insanity, to charge that the proof estab” lished delusion would be to charge that the insanity is proven—the question of fact to be determined; but the court was asked to charge that it was evidence of insanity sufficient to avoid the will. The points of belief avowed by the testator are expressions of opinion, which opinion is either a delusion or not; if it be a delusion it is direct insanity; if it be no delusion, there is no insanity, and of course it cannot be evidence of it. But who shall say that the opinion avowed by the testator, as to futurity, is a delusion. De[204]*204lusion is defined to be, when a patient conceives something extravagant to exist which has no existence but in his own heated imagination, and having so conceived it, is incapable of being reasoned out of the conception (Shelford on Lunacy, 40); as the fancying things to exist which can ■ have no existence, and are impossible, according to the nature of things, as that trees' walk (Shelford, 293); the magnifying slight circumstances beyond all reasonable bounds, as if the parent of a child, really blameable to certain extent in some particulars, - takes occasion to fancy her a fiend, a monster, an incarnate devil (Shelford, 41.) We can comprehend the delusion of the man who fancied he was Jesus Christ, and kindly extended his forgiveness when asked, saying ‘ I am the Christ;’ also his who imagined he corresponded with a princess in cherry juice, and his who dreamed dreams and heard voices directing him to burn York Minster Church. But we cannot comprehend a delusion upen a point of belief as to the nature of future rewards and punishments, and the principles of justice upon which they will be distributed. This is a subject beyond the ken of mortal man, and in one sense of the word perhaps every individual is laboring under a delusion who attempts'to solve it. Yet there is no subject víq are more disposed to theorize about, and about which there is a greater conflict of opinion. The fool hath said in his heart there is no God, and of course no future rewards and punishments; a dreadful error, yet no one apprehends that it amounts to insanity, and that he has not a disposing mind.
“ The Turk looks to his heaven of sensual enjoyment, the Christian to his intellectual points of faich, differing as widely as the sources of their religion. Delusion in its legal sense cannot be predicated of either, and indeed of no creed upon the subject, because there is no test' by which it can be tried. ■
“ The fact that the testator sincerely believed in many absurd notions, such as mesmerism, clairvoyance, divining and mineral rods, dreams and spiritual influences; that he searched for the [205]*205supposed deposits of money by Kidd, and ascribed his failure to the utterance of certain words by the operator; that he saw the devil in the shape óf a bull, and that he believed in certain charms for the cure of rheumatism and fever and ague, is no sufficient reason for setting aside á will in all respects rational. (See Thompson v. Quimby, 2 Bradf. Sur. R., 449; S. C. nom. Thompson v. Thompson, 21 Barb., 107.) The learned surrogate said: ‘ In cases of unusual theoretic belief, it is important to inquire whether the belief has obtained the mastery of the mind, or whether it has been held in subordination to the judgment.’ ”
We will not undertake to say, that in any of those conceptions . which appear to have entered-into the mind of Hamilton Washington, while living, he was laboring under delusion; nor do we think the evidence in the case goes to establish delusion in the mind, for we doubt exceedingly whether, if his opinions being tried by the highest tests of science, reason and experience, they might not prove to be correct. “ Paul, thou art beside thyself; much learning hath made thee mad,” said Porcius Festus. But as Paul reasoned of righteousness, temperance and judgment to come, Felix trembled. At least the Christian world would now say of the Roman functionary, that he was under a delusion; and if delusion is insanity, then he was insane.
We would not set aside the verdict in this case merely for want of the proper form, but we nevertheless regard it with some suspicion. If the jury had said, from the evidence we are led to agree that the will of 1868 is invalid, it would have been better; or had they by any form of words alluded to the testimony in the case as the predicate on which they founded their agreement, it would have been much better.
But we do not. hold that the judgment of the court should be set- aside, for this, reason aloné, but we think the charge of the. [206]*206court was erroneous, and well calculated to mislead the jury, and for this reason the judgment is set aside and the cause remanded.
Reversed and remanded.