New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1884-05-12
TIE FTTZGERALD WILL CASE.

Suits to set aside wills, for "mental in
capacityn of the testator or for "undue mfu
encer practised to obtain his signature, are so
often and so aDgrily prosecuted in New-1ork
courts that many persons will welcome the
lucid explanation which has just been given by
Judge Field of the Massachusetts, mot the
Washington Supreme Court, in bis charge to
the Jury in the Fitzgerald case. Fitzgerald's
will seems to have given all his property to his
wife, dsinherting their son. Both testator and
wife were aged and infrm the testator could
not read writing, and the wife had living son
and grandchildren by former husband. Young
James Fitzgerald contested the Will upon the
ground that his father was not mentally quail
fed to make one. He also complained that GER
tain persons Immediately around the old gentle
man in his last illness lied 10 him about James,
10 the effect that James had become a dissOlute
drunkard, and that it would be far better for
the father to will the property to the mother,
who could then use somewhat powerful inliu-
ence to induce him to reform, by holding out
the assurance that her will would be made in
his favor or not, according to his behavior.
James declared that the charges of intemper
ance were false and moreover that his mother
a will which would stand, and that the secret
purpose of those who had procured the fathers
will was to have the property go, on the
mothers death, by the rules of law, in great
part to her descendants by her former mar
riage, giving him only share as one son.
Insanity is often spoken of rs if it were a sin
gle, simple condition but in truth there are
many grades of mental capacity and many
different standards of the degree of ability
needful for various acts. When relatives claim
to send man to the insane asylum, they are re-
quired to show that he is of unsound mind and
incapable of managing his affairs generally.
When q murderer is defended on the ground of
insanity, the question is whether his disease of
mind prevented his knowing the nature and
wrongfuness of his act When the question is
whether a trial must be postponed because the
accused is insane the question is whether he
has mental ability, not for arguing all the law
points, bat to understand the nature and cOnse-
ouenceS of the proceeding, employ counsel, and
give them the proper instructions and informa-
ton. If marriage or a contract or a deed il
TO be set aside because the party was a lunatic,
the question is whether he was disabled by dis
ease from understanding the nature and cOnse-
quences of the thing done. Whether the act
done was wise or foolish has little bearing on
the question of capacity. The test varies with
the nature Of the question. When the validity
of will is n question, the test is Had the tcs-
tatOr mind enough to know his relatives and
his duty toward them, and to understand the
nature and value of his property aud the effect
of the will upon il. UnSoundness Of mind
which does not disable in these respects does
not disaualifv from making a will indeed less
mental power is required for will making than
for ordinary business. And, as Judge Field
saws. a man may have insane delusions, may
have a belief that the sun goes around the
earth. for example yet if they are not such as
impair his understanding of distributing his
property. they will not disqualify him. As law
yers know, also, many wills have been sus-
tanned notwithstanding delusions. One testator
believed himself haunted by witches, and by
the devil; had Sound teeth extracted because
he believed his enemies had got into them !"
had holes cut in his shoes that he might drive
the devil out easier; habitually dozed in the
day and kept awake at night to fright the
witches" for which he kept great variety of
swords. woman lived life so imbecile that
she was washed and dressed and fed almost like
q child that she could not be taught TO read and
write that her father in his will, speaking of her
imbecility as the reason, gave her small annuity
instead of leaving her any property. Another
woman believed iii spirits, and that her will was
according to wishes communicated by her de-
ceased husband. Wills of such persons have