[284]*284By the Court,
Sutherland, J.
The contestants do not contend that" the two written instruments, dated the 27th day of February, 1862, were executed under restraint or undue influence. There is no pretense that they were.
The questions, then, presented by the appeal, are four:
1st. Could these two instruments, notwithstanding their repugnancy in certain particulars, or in certain respects, constitute a will, or the will of the deceased, and legally and properly be admitted to probate as such?
2d. If they could, were the two instruments executed and attested in the manner required by the statute ?
3d. If they could constitute, and be admitted.to probate as a will, or as one will or instrument, and were executed and attested in due form, had the deceased testamentary capacity when they were executed^ and attested ?
4th. If the preceding questions are decided in the affirmative, the remaining question presented by the appeal is: Should the tearing up of the two instruments by-the deceased, on or about the 31st day of August, 1864, under the circumstances, and considering what was said and done at the time, be regarded as a revocation of them, viewing them as constituting one will or instrument ?
As to the first question, I am the more willing to say that I think the general term erred in deciding it, when the case was here before, because that impromptu decision was made upon, and probably in consequence of, my suggestion. Further consideration of the question does-not permit me to doubt that the point or question of repugnancy or inconsistency in the provisions of the two instruments did not arise, and could not properly be considered, in the probate proceeding; that the two instruments, if executed and attested at the same time, could constitute a will, and might properly be admitted to probate as such, notwithstanding their repugnancy in certain [285]*285particulars; that the question or point of repugnancy might or would be a subject for consideration, after the probate of the will, when the two instruments came to be carried into effect, or claimed or acted under, as a will.
The general rule is, that two or more written instruments, executed at the same time, relating to the same subject matter, by the same party, or between the same parties, should be construed together, and viewed as one instrument,
I see no reason for making these two instruments an exception to this rule. The repugnancy could not prevent or affect its application to them. The proofs, when the case was here before, were clear and conclusive that the two instruments were executed and attested at the same time; and, if possible, this point is made clearer by the additional evidence before us now.
I do not .think that the former impromptu decision of this question, when the case was here before, should, under the circumstances, be regarded as res adjudícala.
As to the second question, whether the two instruments were executed and attested in the manner required by the statute, I am clearly of the opinion that the proofs show that they were; and that the surrogate was right in holding and decreeing that they were.
Mrs. Westervelt, one of the two witnesses to the will, swears clearly and positively on this point. She swears that Mrs. Forman told her, in the room, when and where the two papers were executed, before they were signed by Mrs. Forman or the witnesses, when she, Mrs.. Forman and Maria Smith were together, that the paper or papers was or were her will. Maria Smith, the other witness* swears that Mrs. Forman did not say, while she was in the room with Mrs. Westervelt and Mrs. Forman, when and where the papers were executed, that the paper or papers was or were her will; but she admits when Mrs. Forman came to the kitchen to call her as a witness, that she then [286]*286and there told her that she wanted her to witness her will. The inference, if Maria Smith was an honest and willing witness, is, that she had forgotten that Mrs. For-man called the paper or papers her will, in the room when and where they were executed and attested. .
It is not disputed that the proofs show that the two papers were signed by Mrs. Forman in the presence of the -two witnesses, and that they sighed their names as witnesses in her presence and in the presence of each other.
3d. Had Mrs. Forman testamentary capacity when the two papers were executed and attested ?
This is the great and interesting question in this very extraordinary case, and the question, to which nearly all 'of the evidence in the bulky volumes of printed evidence relates. The words “persons of non-sane memory,” in the statute of Wills of Henry YIH, meant persons of non-sane or unsound mind. It was held in the Marquis of Winchester’s case, (5th Coke,) that a person, to make a testamentary disposition of his lands, must have a memory sufficiently sane and perfect to do the act or thing authorized by the statute; that is, to make a testamentary disposition of his lands, with reason and understanding.
The words of our statute of wills as to real property are: “ All persons except' idiots, persons of unsound mind, &e., may devise,” &c. (2 R. S. 56.) The words of our statute as to wills of personal property are: “ Every male person, &c., of sound mind and memory, and no others, may give, bequeath,” &c.
The words mind and memory, as used in this last statute, and as used at common law, are and were convertible terms. The use of the words mind and memory as convertible terms is not so unphilosophical as it might at first seem to be, for without memory there could be no mind, properly speaking. Without any memory, a person would be the mere recipient of a succession of present sensations, like the lowest type of animal life.
[287]*287As the result of the reported cases relating to testamentary capacity, under our statutes, it may be said that the question of capacity, in the abstract, is, had the testator, at the time, &c., a mind, or mind and memory, sufficiently sound to make a will; that is, to do the thing or act authorized by the statutes; but that practically, in most cases, the question is, had the testator, at the time, &c., a mind, or mind and memory, sufficiently sound to make the will in' question. (See the Parish Will Case, 25 N. Y. Rep. 9, &c.; The Hopper Will Case, 33 id. 619; The Lispenard Will Case, 26 Wend. 255; Clark v. Fisher, 1 Paige, 171; Stanton v. Wetherwax, 16 Barb. 259; Thompson v. Thompson, 21 id. 107.)
There is no pretense that Mrs. Forman, when the two papers were executed and attested, was an idiot, or in a state of fatuity. There is no pretense that she was then a raving maniac.
I think the proofs in this case furnish no reasonable ground for thinking or saying that she was then in a state of dementia—that she was then generally or absolutely insane on all subjects, or in relation to all persons.
The undisputed circumstances attending the execution of the two papers-—her conversation at the time, as testified to by both the witnesses to the papers—her conversation with Mrs. Westervelt when she gave her one of the papers to keep—the preparation of the two papers—her evident and undisputed purpose in preparing.and executing the two papers—her previously intelligently expressed intention of doing what she did do—show conclusively that when the two papers were executed Mrs. Forman was not generally or absolutely insane—that she was not then in the state or condition of dementia. I have read every word of the evidence in this case—portions of it more than once—and I think I may say that the proof of facts and circumstances relating to the conduct and conversations of Mrs. Forman, prior to and up to the time of her [288]*288executing the two papers, do not show that she was not then ordinarily reasonable and intelligent on most subjects, and was not then intellectually able to take care of herself and of her affairs. The proofs furnish no pretense for saying that she was not competent to make a will, when she made the Reynolds will, in 1859, or the DeWitt will, in August, 1861.
The proofs do not show any change in her conduct or conversation between the making of the De Witt will and her .execution of the two papers in question, from which it would be reasonable to infer that she had become generally or absolutely insane, when the two papers in question were executed. Mrs. Westervelt, one of the witnesses to the two papers, swears that she did not suspect, when Mrs. Forman executed them, that she was of unsound mind. Mafia Smith swears that she thought she was then of unsound mind. Other witnesses, including Mrs. For-man’s husband, expressed the same opinion. Other witnesses expressed.the opinion that she was then of perfectly sound mind. There probably never was a case where the bare expression of the opinions of witnesses, not experts, on such a question, was entitled to less "weight. . Most of them, pro and con, were and are deeply interested in the decision of the question, pecuniarily and otherwise. Mr. Forman, the husband, the prominent contestant, and perhaps the most-important, prominent and industrious witness on that side, stood and stands with open hands, willing and eager to catch and take, use and enjoy, whatever the law will give him, as husband and next of kin, or either, of his poor wife’s estate, if she is judicially declared to have been insane when she executed the two papers in question. I do not wish to be uncharitable to Mr.. For-man, but I must say that his position in the case; his interest in the case; his industrious efforts to make out that his wife was insane, insane generally, insane absolutely; his unjustifiable conduct in forcing her into a pri[289]*289vote mad-house, as he did, with the aid of the police, without any legal proceeding, or legal adjudication as to her insanity, without advising with her friends and relations with whom she was most intimate, and without even the certificate of her physician, or of any physician; his keeping her there for six months without her seeing any of these friends and relations; his conduct in getting the papers from Mrs. Wright and Mrs. Westervelt and putting them into the hands of his wife in the asylum, when and where they were torn to pieces by her; and other circumstances to which it is not necessary to refer; should greatly impair, if not entirely destroy, the weight not only of any opinion of his, on the question of his wife’s sanity or insanity, but also the faith and credit to be given to his evidence, as to facts and circumstances relating to her' conduct and conversation, when, or where, his evidence is not supported by other evidence, or other circumstances.
■ As to Maria Smith, perhaps the next most prominent and industrious witness for the contestants, her evidence and her opinions are certainly greatly impeached by her continued servile relation to Mr. Forman, and her manner of testifying, so far as it can be inferred from reading her evidence.
Ho doctor or expert has, I believe, undertaken to testify that Mrs. Forman was insane when the two papers in question were executed,,or at any time prior to their execution.
The only legal test of insanity is delusion. Insane delusion consists in a belief of facts which no rational person would believe. A person may be partially insane; that is, he may have an insane belief or delusion as to one or more subjects, and not as to others. (Dew v. Clark, 3 Addams’ Eccl. Rep. 79. Frere v. Peacocke, 1 Rob. Eccl. Rep. 442, 445. Greenl. on Ev. § 371, a. Fulbeck v. Alison, 3 Hagg. 527. The Hopper Will Case, 33 N. Y. Rep., before cited. Stanton v. Wetherwax, 16 Barb., before cited.)
Was Mrs. Forman, at the time she executed the two [290]*290papers, partially insane ? Or rather, to state at once the question in this case, was she insane on the subject of her husband ?
Mrs. Forman’s estate amounted to some $150,000. She was married in 1851. In 1855 her father died. In 1855, after her father’s death, she made a will by which she gave her husband the bulk of her estate. She made another will in 1859, by which she gave her husband less. In August, 1861, about ■ six months before she executed the two papers in question, she made another will, by which she gave her husband still less. By the two papers in question she gives her husband a bare pittance of $1000. She had no children or descendants. She had collateral relations, cousins, &c., and one half sister, Mrs. Haviland, her heir-at-law. She disliked Mrs. Haviland, and I believe she is not mentioned in the two papers, or in either of the wills. This dislike and exclusion of Mrs. Haviland from her wills is accounted for, without resorting tq any theory of insanity, or of insane delusion.
There is no doubt, when the two papers in question were executed, that Mrs. Forman despised, distrusted and hated her husband, and I think then feared him. Certainly there is no doubt that soon after the execution of the two papers, and while she had one of them in her possession, in her room, or in the house, and up to the time she was forced to the asylum, she greatly feared him, and even the servants in the house, whom she thought he might control. It is a fair inference from' the evidence, that these feelings towards her husband caused her to execute the' two papers in question. There is no doubt that she intended, by them, to prevent her husband from getting any more of her estate, on .her death, than he would get by them.
How I think it must be conceded, as matter of law, if the evidence in the ’ case satisfactorily shows that these feelings towards her husband, at the time she executed [291]*291the two papers in question, proceeded from, or originated in, an insane delusion, then the evidence shows that she was not competent, or had not testamentary capacity to execute the two papers in question, as, or for' a will, or her will. The cases I have before cited are sufficient to show this, I think.
But it must be particularly noted that the question is not whether these feelings towards her husband, at the time, &c., were unreasonable, excessive or unjustifiable morally, or even whether they amounted to, or showed moral insanity as to her husband; but the question is, whether these feelings were insane—whether the contempt, distrust, hatred and fear, which she had of and for her husband, at the time of the execution of the two papers in question, was insane contempt, insane distrust, insane hatred, insane fear; or, in other words, the contempt, the distrust, the hatred, the fear, of an insane wife towards her husband.
• I do not know that what is called moral insanity has a place in civil cases, and in civil courts. I do not know that, legitimately, and properly, it has a place in criminal cases, or in criminal courts.
I repeat, that by the reported cases, and by the books, delusion, hallucination, is the legal test of insanity. Moral insanity is a disorder of the feelings and propensities. Legal insanity is á disorder of the intellect. I)r. Prichard describes moral insanity as “ consisting in a morbid perversion of the feelings, affections and active powers, without any illusion or erroneous conviction impressed upon the understanding.” Moral insanity may, or may not, impair the intellect, or intellectual faculties. Moral insanity not proceeding from,- or accompanied with, insane illusion, the legal test of insanity, is insufficient to set aside a will. (Frere v. Peacocke, 1 Rob. Eccl. R. and other eases before cited. 1 Jarman on Wills, 66. Greenwood v. Green[292]*292wood, 3 Curteis' App. III. Boyd v. Eby, 8 Watts, 72. Prichard on Insanity in relation to Jurisprudence, 16, 19, 30.)
The question of testamentary capacity, in this case, is, was Mrs. Forman, at the time she executed the two papers in question, legally insane as to her husband? Hot, was she then morally insane as to her husband. The question of insanity as to her husband is not, were her feelings towards her husband, when, &c., unreasonable, unjustifiable ■or unusual, but is, were these feelings founded on, or did they proceed from, or originate in, delusion—insane delusion ? I think these feelings account for all of her con-' duct and conversation reliably proved in this ease, claimed by the contestants to show that she was insane as to her husband, when the two papers in question were executed. They account for her complaints of her husband. They account for her complaints that he did not render her accounts, or satisfactory accounts, of her property. If he did render them, these feelings towards her husband account for their not being satisfactory. But did he ever render her any accounts of her property, or of its income ? I must confess I doubt whether he ever did. Hot one was produced. He brought into court the round stones that she had picked up. He counted them, or had them carefully counted, so that he could say how many there were. He produced the banners, the kites, the tins, and the doggerel, or doggerels, about the “ raids,” or “duping raid;” but why, if he had from time to time rendered her these accounts, was not one of them produced ? The fact that he ever gave her these accounts, or any account, is shown alone, I think, by his evidence. I have already made a remark, which I do not wish to repeat, as to the credit to be given to his evidence when it is unsupported by any other witness or circumstance.
The feelings of Mrs. Forman towards her husband, especially her fear of him and of the servants in the house whom she supposed under his influence, aggravated by [293]*293her physical ailments; her loneliness and seclusion, after she and her husband occupied separate rooms; considering her education, character, and want of occupation, account for her conduct in and about her room, after such separation; for the bells on the doors; for her fear of chloroform ; for her putting the slips of paper over the cracks; for her fear of being poisoned; for her conduct as to her food, not eating at the table, &c. Of course these feelings are sufficient to account for her request that she and her husband should occupy separate rooms and beds. But there is one of the witnesses—I think, Mrs. Westervelt— that hints that Mrs. Forman told her that there was another, or an additional, cause for this request, which either Mrs. Forman was not willing to plainly speak of, or the witness was not willing fully to disclose, and did not fully disclose.
These feelings towards her husband, especially her distrust of him, and of his motive in marrying her, account for her suspicions as to his having got her money out of the banks, and as to the real nature and effect of certain papers relating to property, which she had executed. Of course they account for her complaint that he married her for her money; that he did not pay her as much attention as he did the servants in the kitchen. But it is these feelings, this contempt for her husband, this distrust, hatred and fear of him, which is to be accounted for.
The proofs preliminarily showed that Mrs. F'orman, at the time when, &e., was competent, or had testamentary capacity, to execute the two papers as a will. The proofs leave no room for doubt that her, feelings towards her husband caused her to execute the two papers as or for her will, and influenced her dispositions of property by them.
It was for the contestants satisfactorily to show that these feelings towards her husband came from, or originated in, or at least were accompanied with, delusion as to her husband, his character, conduct, motives or condition. [294]*294In my opinion the contestants did not show this. I go farther. In my opinion the proofs in this case do not furnish reasonable ground for suspecting that Mrs. Forman’s contempt for her husband, her distrust, fear and hatred of him, when she executed the two papers, came from, or originated in, or were accompanied with, delusion as to her husband, his character, conduct, motives or condition. Mrs. Forman^appears to have been the pet child of a kind and indulgent father. Her father was a respectable mechanic,who acquired considerable property by industry and economy. He educated this daughter at the most fashionable boarding schools. She married Mr. Forman in 1851, she being then about 43 years of age, and he about 48, after' a most common-place and cool courtship of years. She probably married Mr. Forman at the suggestion of by the advice of her father; certainly without any enthusiastic love on either side. Her father died in 1855, but before his death had- given her all his property. She made a will in 1855, after her father's death. Up to this time she and her husband appear to have got along very well together, but they had no children, and never had any. With less affection for her husband, she made another will, in 1859; with less affection for -her husband shé made another will, in 1861; with no affection for her husband, and with' feelings of contempt, distrust, hatred and fear of, and for him, six months afterwards she executed the two papers in question.
From the proofs in this case, Mr. Forman appears to have been at the time of his marriage, and to have continued to be, a common-place, cool, complacent, calculating, circumspect man, without vices or virtues to excite or attract the attention of men or women; with little education, and with little means, and at the time of his marriage, and for some years afterwards,. engaged in a business which, of all others, was least calculated to add to or expand the ideas that he had. After he left off
[295]*295business, in 1858, he appears to have had nothing to do but to attend to his wife’s property, collect her rents, &c.
If the history which the proofs in this case give of this man, and his poor wife, who died in a private lunatic asylum, after being forced and kept there for nearly two years, without any adjudication of her insanity, (unless the habeas corpus proceedings, months after she was put there, involved such adjudication,) does not sufficiently account for Mrs. Forman’s feelings towards her husband when the two papers were executed, without resorting, or the necessity of resorting, to any supposition or theory of insane delusion or hallucination as to her husband, his conduct, motives or character, then these feelings are not accounted for by the proofs in this ease. These proofs do not show that these feelings came from, or originated in, or were connected with, any insane delusion as to her husband, or of which he, • his character or conduct, was the subject. A wife may trust or fear her- husband unreasonably, or love or hate Mm excessively, without being expected to give very satisfactory reasons for it. Mrs. Forman, on one or more occasions, was reminded of the apparent kind and -affectionate attentions of her husband. She said, yes, “but a man could smile, and smile, and be a villain.” I do not say that she did-nbt mistake the character and designs of her husband. I do not say that he did intend to poison or chloroform her, to get her will or her property. I do not say that he was or is a villain. But I do say that the proofs in this case do not satisfactorily show that her fear and hatred of her husband came from insane delusions of or about him, his character or designs. A wife may fear and hate. her husband excessively, without .being crazy.
Mr. Forman never treated (I mean by acts) his wife as insane, until he took her to the asylum. He treated her as sane after she was there, by getting her to execute certain papers respecting her property. He ought not to be [296]*296permitted to say that he did not treat her as sane by getting the two papers in question, and handing them to her in the asylum. Ho doctor certified to her insanity, until months after she had been in the asylum, and a stir had been made about her confinement.
There is much evidence which, the contestants claim, shows that she was insane on certain subjects other than her husband. She was greatly excited about our late war, or rebellion, and hence came the kites, the banners, the doggerel or doggerels about the raid or raids, her fears about the continuance of the government, and her talk about the Prince of Wales, and our having a king, &c. &e.
She had a passion for gathering round water-worn pebbles or stones from the sea shore, and other places, and hence came her collections of a great number of round stones, or pebbles. Her husband testifies to a conversation with her in the fall of 1860, or beginning of 1861, which, if it ever took place, would go to show that she was deluded, insanely deluded, about a Mr. Yail who had once worked for her father. He swears that she said she was going to put certain pieces of tin, which he found in a certain closet, over her heart, so that this Mr. Yail could not stab her;» that she had once seen Yail at a store in Greenwich street;' and she.ran away as fast as she could. How it seems that there was a Mr. Yail, who had worked for her father, and as there is no pretense for saying that she had any ground for fearing him, if she did say what her husband says she did, on this occasion, she must have been insanely deluded on this point. Three of the pieces of tin were produced before the surrogate and identified by her husband. Miss Denham had also .seen the piece or pieces of tin in the closet, or in Mrs. Porman’s possession; but she explains for what natural and useful purpose Mrs. Porinan might have got and used them. I believe the evidence of Mr. Porman, as to the conversation about the pieces of tin, stands unsupported by any evidence or circumstances, [297]*297except the fact that she had several pieces of tin, and three of them were produced and identified. I refer again to what has been said about the evidence of Mr. Forman as to the conduct and conversation of his wife, when it is unsupported.
Mr. Forman also testifies to a conversation with his wife in the winter or spring of 1861, in which she said that she was jealous of a Mrs. Denham, who, with her husband, had been dead many years, and that when told so, she said, “ well, crazy people have got curious notions.” I believe this evidence is unsupported by any other witness or circumstance, and I do not believe the conversation ever took place.
There is also some evidence as to Mrs. Forman’s great attachment to a certain pigeon, and her eccentric way of trying to catch it in the street, on a Sunday, and I believe on one or two other occasions, in the street.
I have referred to the principal if not all of the subjects other than her husband, as to which it is, or might be, claimed that she was insane when the two papers in question were executed. '.There may be evidence of some other eccentric conduct or conversation, not connected with or relating to her husband or the two papers in question, or any of her testamentary dispositions of property, which I have not referred to.
You might concede that she was insane, morally or legally, or both, on these subjects other than her husband, without interfering with the conclusion that she had testamentary capacity, when the two papers were executed—■ testamentary capacity to execute the two papers as a will, or as her will.
6 A monomaniac, or a partially insane person, may make a will. A believer in witches and witchcraft, in spiritualism, or in the doctrines of Mahomet, may make a will. The proofs in this case do not show, or make it probable, if Mrs. Forman was insanely deluded on any or all of the [298]*298subjects, other than her husband, which have been alluded to, that such insane delusion or delusions at all influenced her in preparing and executing the two papers in question, or in making the testamentary dispositions of her property intended to be made by them. Yail was not related to her, and it was not natural that she should think of him, ■ in preparing and executing the papers. He had nothing-to expect from her.
There is in these two papers a small legacy to David Coons, a cousin of hers, who, it seems, died in January preceding the execution of these papers in February. This is, I think, explained by the circumstances that the two papers were mostly copied from the De Witt will, and that that will contained a like legacy. David Coons lived in . Hew Jersey, and it is quite probable that the two papers were prepared before she heard of David Coons’ death.
My conclusion is, that Mrs. Forman, at the time she executed the two papers in question, had testamentary, capacity; that she had then capacity, and was competent to execute them as her will.
The fourth and remaining question is, should the act Of her tearing up the two papers, when handed to her 'by her husband, in the asylum, considered in connection with what she said, at the time, be regarded as a revocation of them' as her will.
The counsel.of all the parties have argued this case upon the theory that she was then insane and incapable of having or forming an intelligent and rational intention. I do not wish to' disturb this concession, nor am I willing to concede that the evidence in this case shows that she was then permanently insane; but I think that the evidence does show that she was, when she tore up the papers, in a condition and laboring under an excitement, which, under the circumstances, incapacitated her for forming or having a reasonable or intelligent intention of revocation.
My conclusion upon the whole case is, that the áecree of [299]*299the surrogate admitting the two papers to probate as her will, should be affirmed, I have some hesitation in saying, with the costs of all parties to be paid out of the estate; hut the circumstances of the case are very peculiar, and if my associates, who are to concur or non-concur in this opinion, think that the costs of all parties should be paid out of the estate, I am willing to say, with costs of all parties to be paid out of the estate.
[New York General Term,
June 7, 1869.
Decree affirmed.
Geo. G. Barnard, Cardozo and Sutherland, Justices.]