of Converse v. Converse

21 Vt. 168

• Court: Supreme Court of Vermont
• Decided: January 15, 1849
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

The subject involved in this case is one of some difficulty. It is not easy to lay down any precise rule, as to what exact amount of mental capacity is sufficient, to enable one to dispose of property by will. The rule laid down by the judge in this case, in summing up to the jury, seems to have been rather a medium one, rather sensible and judicious, and if we reversed the judgment, we could hardly expect to prescribe a safer or more intelligible one. Every man will have his own mode of expressing the thing. The rule of one is very little guide to another.

I have myself usually told a jury, in these cases, that less mind is ordinarily requisite to make a will, than a contract of sale, understanding^, for the reason, that in contracts of sale there are usually two parties, and some degree of antagonism between their interests and efforts; — so that here mind is opposed to mind, and consequently it is somewhat more difficult to see clearly the just bearing of all the relations presented, than under the common circumstances of making a will, where one is left free to act upon his own perceptions merely. But this is not always the case in making a will. One may be beset by an army of harpies, in the shape of hungry expectants for property, altogether more perplexing than the ordinary circumstances attending a disposition of property by sale.

But it may be safe, no doubt, to affirm, that, in making any contract understandingly, one must have something more than mere passive memory remaining. He must undoubtedly retain sufficient active memory, to collect in his mind, without prompting, particulars, or elements, of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their more obvious relations to each other, and be able to form some rational judgment in relation, to them. The elements of such a judgment should be, the number of his children, their deserts, with reference to conduct and capacity, as well as need, and what he had before done for them, relatively to each other, and the amount and condition of his property, with some other things, perhaps. The capability of men in health to form correct judgment in such matters is no doubt very unequal, and, when there is no inherent incongruity in the will itself, and no just ground to suspect improper infiuence, juries are, and perhaps should be, very liberal in sustaining testamentary dispositions. But there must undoubtedly be some limit. When one is confessedly in a condition to be constantly liable to commit the most ludicrous mistakes, in regard to the most simple and familiar subjects, he ought not to and cannot make a will.

Judgment affirmed.