Volume 1

Wharton and Stille's medical jurisprudence.

  • Wharton, Francis, 1820-1889.
Date:
1873
Catalogue details

Licence: Public Domain Mark

Credit: Wharton and Stille's medical jurisprudence. Source: Wellcome Collection.

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    transactions of life, yet, if he is unable to take the active management of all his concerns, however involved those concerns may he, or if he is liable to become confused by entering into intricate transactions, he is totally incapable, and cannot enter into a testamentary disposition, however plain and simple it may be. Now, when opinions are formed by such opposite standards, it is obvious much contrariety will occur. Sir John Nicholl observed that experience in the Ecclesiastical Court teaches us, that evidence upon questions of capacity is almost always contradictory, such evidence being commonly that of opinion merely; and this contrariety pro¬ ceeds from the obvious grounds, that, of the witnesses, no two, possibly, have seen the party whose estate is deposed to, at precisely the same circumstances; and that each, again, of the several witnesses, no matter how numerous, measures, possibly, testamentary capacity by his own particular standard. These sources of discrepancy, and many more might be enumerated, are common to all cases of this description. There is an additional source, when the transaction of which they have to speak is remote, a circumstance sufficient in itself to account for no inconsiderable degree of contrariety of evidence, even where the witnesses have to speak of facts merely, and not of opinions formed and inferences built upon facts, of which most of the evidence furnished upon questions of capacity is commonly made up. If the court, therefore, on questions of capacity, is accustomed to rely but little upon such evidence, so far as it is that of mere opinion, hut to form its own judgment from the facts and the conduct of the parties at the time, it becomes it to do so, more peculiarly when much of the evidence not merely consists of opinions delivered long subsequently to the transactions which they profess to have suggested them, upon loose recollections, too, and after repeated discussions of the subject matter with interested parties.”(.9) § 25. The lowest test of capacity was applied in a very much contested case in New York, which is cited at large by Dr. Beck, and which excited great interest from the immense property at stake, and the respectability of the parties. It (s) Shelfordou Lunacy, 277-8. SeeExparte Yanauken, 2 Stockt. (N. J.) 186.