
    George Deshon, Appellant, v. The Merchants’ Bank et al., Respondents.
    Upon a trial involving the question of the mental imbecility of the testator or grantor, a non-professional witness cannot be asked the broad question whether, at the time referred to, such person “was out of his mind;” nor the question, “was he so affected in his mind as to be unfit for transacting his business.”
    (Before Bosworth, Oh. J., and Moncrief and White, J. J.)
    Heard, May 6;
    decided, June 29, 1861.
    Appear from a judgment entered on a decision of Judge Woodrtjee, before whom the action was tried at a Special Term of the Oourt, in June, 1858.
    
      This was an action brought by George Deshon against The Merchants’ Bank in the City of Hew York, and Mary A. C. Packwood, individually, and as executrix of Samuel Packwood, deceased, to recover from them a fund which the plaintiff claimed under an alleged assignment of the fund, made by the testator the day before his death. The only question raised upon this appeal was as to the validity of this assignment, which had been impeached by the • defendant on the ground that the testator, at the time of assigning the fund, was not of sound or disposing mind. The testimony given on this subject was very voluminous. Among other witnesses called by the plaintiff, was Thomas Monahan, one of the subscribing witnesses to the' assignment, who testified that he was a laborer. Among other questions, the Counsel for the plaintiff asked him:
    Q. During the last three days of Mr. Packwood’s life, state whether or not Mr. Packwood was out of his mind, and state the facts upon which you base any opinion you may give.
    This question was objected to, and the question was allowed, so far as to allow witness to state any facts which he knew, and anything he said or heard; but was ruled out as to the witness’s opinion, until some evidence should be given of the witness’s competency to speak as an expert. To this ruling Counsel excepted.
    The witness was then asked:
    During the last three days of Mr. Packwood’s illness, state was he so affected in his mind as to be unfit to transact his business?
    Objected to by defendants’ Counsel, and the same ruling made as to last question, and the Counsel for plaintiff excepted.
    The Judge found, as a conclusion of fact, that the testator at the time of making the assignment, was sick, old and feeble, and not of sound or disposing mind, but insane and without mental capacity to transact any business or understandingly to execute any instrument, and directed judgment for the defendant, from which judgment the plaintiff appealed.
    
      John JE. Develin, for appellant, insisted that on the whole evidence the deceased had sufficient capacity, and that also the Judge erred in excluding the parts of the two questions excluded by him as above stated, citing DeWitt v. Barly & Schoonmaker, (17 N. Y. R., 340.)
    
      Benjamin W. Bonney, for defendants, The Merchants’ Bank.
    
      J. M. Mason, for defendant, Packwood.
   By the Court—Bosworth, Ch. J.

The only exceptions taken during the trial, relate to the exclusion of evidence of the witness Thomas Monahan, whether, first, the deceased, “Mr. Packwood was out of his mind,” and, second, “ was he so affected in his mind as to be unfit for transacting his business” at the time to which those questions refer.

DeWitt v. Barly & Schoonmaker, (17 N. Y. R., 340,) is relied on as establishing that the evidence Avhicli Avas excluded, was competent and admissible.

It was conceded in that case that the decision in the same case, (5 Seld., 371,) is to be considered as an authority for the doctrine, that upon a trial involving the question of the mental imbecility of a testator or grantor, a nonprofessional witness cannot be asked the broad question whether he considered the party non compos mentis, or which is the same thing, incapable of managing his affairs. (17 N. Y. R., 347, 348.)

These questions are of this character: one, in very terms, inquires whether the deceased “was so affected in his mind as to be unfit for transacting his business,” and the other, whether he “was out of his mind.”

These questions embrace the whole law, as well as the facts of the case. ' For if he was not out of his mind so as to be unfit for transacting business, then the transfer to the plaintiff is valid; if he was out of his mind so as to be unfit to transact business, it is invalid. A correct answer to the question, involves the rule of law, which fixes the lowest degree of capacity that leaves a man competent to transact business, and the matter of fact, whether that degree of capacity existed. (17 N. Y. R., 347.)

We think neither of these exceptions is well taken.

As to the question of fact whether he had sufficient mental capacity to transact any business, or execute, understanding!y, any instrument; it is sufficient to saj^, that the judge has found it against the plaintiff, upon evidence so pointed, intelligent and disinterested, that we are not at liberty to disturb the judgment.

We do not deem it important to discuss the evidence of the several witnesses affecting the question of the mental capacity of Samuel Packwood, at the time he executed the instrument of transfer, dated August 21st, 1858.

The evidence of the physicians standing alone, is full and explicit: They are persons of skill, and in addition to the experience and general observation belonging to these and the other witnesses in common, they were disinterested observers in this case, and had full opportunity to determine.

There is nothing in the testimony of the other witnesses, which can justly detract from the force and effect which would otherwise be conceded to the testimony of the physicians.

The judgment must be affirmed, with costs.  