
    BONARD’S WILL.
    
      Before Hon. Robert C. Hutchings,
    
      Surrogate of the City and County of New York,
    1872.
    Testamentary Capacity.—Evidence on Probate. Power of Corporation to Take by Will.— Equitable Conversion,—Rules of Interpretation.
    The testator, it was alleged, believed that the souls of men after death passed into animals; and, having no family nor known relations, devised and bequeathed his property to the Society for the Prevention of Cruelty to Animals. But it did not appear that he made any declaration of Ms peculiar opinions, in connection with Ms intended testamentary disposition. Meld, that these opinions were not evidence of insanity or insane delusion, even though the ’testamentary intention might not, otherwise than for the alleged delusion, have been entertained.
    
    'Belief on a question which is entirely within the domain of opinion or faith, and not of knowledge, such as the opinion as to a future state, can nothin any respect, be deemed evidence of insanity. On such a question there is, in a logical sense, no major premise of knowledge.
    An act, enabling a corporation to take by devise, can not. have a retroactive effect, to make valid a devise by a testator who died before the act was in force.
    A bequest of personal property to a corporation absolutely, with a subsequent clause in the will directing that the property should be invested in real estate by testator’s executors, for the sole and perpetual use of the corporation,—Held, not to work an equitable conversion of the personalty into realty.
    The court will not declare an equitable conversion to have taken place by implication, if the disposition of the fund, regarding it as realty, would render the provision of the will void.
    A direction to invest personal property in land, given in separate clauses from the bequest of the personal property, may, if the beneficiary could not take real property, be rejected asa naked direction, and the bequest of the personalty may be sustained.
    The rules applicable to clauses of revocation, and the general principles of interpretation of wills,—stated.
    Method of examination and cross-examination of medical experts,— illustrated ; with hypothetical questions on the facts claimed to liavf been proven
    Contested probate of a last will.
    The testator, Louis Bonard, devised and bequeathed his entire estate, amounting to about one hundred and fifty thousand dollars to The American Society for the Prevention of Cruelty to Animals, a corporation "of this State (created by 1 Laws of 1866, ch. 469). The text of the will is stated at length in the opinion of the Surrogate. Its probate was contested upon the ground that at the time of its execution, the testator entertained an insane delusion that upon his decease, his soul would enter into the body of some animal, and that, influenced by that decision, he executed the will propounded, with a view to the better security of his future existence. It was further objected that the will violated the statute against perpetuities ; that the devise of the real estate was to a corporation not competent, at the time of the decease of the testator, to take by devise: and that an equitable conversion of the personalty into realty took place at chat time also, and vitiated the bequest.
    The parties contesting the probate, were certain alleged heirs of the testator, natives of France, and intervening through the French consul; and two persons claiming as legatees under a previous will. Evidence was given on the probate, bearing upon the life and habits of the testator, from which it appeared that he was a man of considerable education and shrewdness, simple and economical in his habits, and reticent on the subject of his family affairs, very fond of animals, often remarking that “they were better than men that he .left France about 1849, went trading in South America and California, then came to New York, and completed his fortune by speculating in real estate, with great success. In February, 1871, he was seized with pneumonia, and taken, at Ms own request, to St. Vincent’s Hospital, in New York city. While there he executed the will propounded; and soon after, having received the last sacraments of the Roman Catholic Church, breathed Ms last.
    
      Other facts appearing on the probate are mentioned by the Surrogate in his opinion, and are contained in the hypothetical questions propounded to Doctors Clymer and Hammond, the medical experts called in behalf of the proponents.
    A part of the testimony of these two medical gentle- - men upon the probate, is here inserted both as bearing upon the questions in the case, and as a valuable illustration of the methods of examination of scientific witnesses.
    Meredith Clymer, M. D., called for proponents, sworn.
    
      Mr. Gerry, after asking witness to state his profession, the length of time he had been in it, what positions he had occupied, what specialties he had pursued, whether his attention had been especially called to insanity, and his familiarity with the subject historically, and with cases practically, and whether he had been called as a medical expert in such cases, &c., asked:
    Q. What do you understand by an insane delusion ? give a brief definition.
    A. Well, sir; it is almost impossible to define it accurately. I can give a general idea by saying that it is a false notion, impossible in the nature of things, or the nature of the case—often personal to the individual who is suffering from it; of the falsity of which he. can not be persuaded by others, or persuade himself; and in which the faculty or power of comparison is lessened or abolished.
    Q. How does such a delusion differ from an illusion %
    
    A. An illusion is a false appreciation of a perception, or of a real sensation ; it is a mistaken perception ; it is a false perception of a sensation. A man, for example, looking into a cloud, describes it as a camel, or a horse, or some fantastic creature—that would be an illusion—seeing the transformation of what actually exists in some other form.
    Q. Can you give an illustration of a delusion %
    
    A. An ordinary illustration is that of a person who thinks that he has a glass leg. I can also give a case, which happened quite recently in my experience, of a lady with unsoundness of mind. After several examinations, and very careful ones, I was unable to detect any delusion, until she suddenly ordered her children from the room, and then communicated to me the fact that all her troubles came from her daughter being enceinte by the Devil, and that the Devil took the form of various young men, and so on. That was evidently a delusion, and from that arose her peculiar treatment of her family—her dislike of one and special guarding of the others ; from that delusion arose the general symptoms of unsoundness of mind.
    Q. How does an illusion differ from an hallucination % Give an illustration.
    A. An hallucination may be called a projection ex- ' ternally of an inward conception ; that is to say, it is a subjective sensation. The difference between an illusion and hallucination is that the object does not exist except in the idea or fancy of the person in a hallucination. If I were to call that chandelier a horse, or to say that I saw a horse suspended there, it would be an illusion. But an hallucination is not referred to any external object; it is simply a subjective sensation ; it is a false perception of the various senses, as of the sense of hearing ; hearing sounds when no sounds exist, as Luther heard the voice of the Devil, and so on ; of the sense of touch, an ordinary illustration of which is when you take a simple round body and roll it between your two fingers crossed, there appears to be two, when it can be demonstrated that there is only one body. That is an hallucination of the sense of touch.
    
      Q. How does . a delusion differ from a belief—what do you understand a belief to be ?
    A. A belief may be described as the assent to a proposition admitting of any degree of strength, from the slightest probability to the fullest certainty. There are various forms and gradations or degrees of belief. There is a mere notional belief, and there is a religious belief or conviction, which admits of no doubt or discussion, and which is fixed.
    Q. How does a belief differ from a delusion %
    
    A. That -is a question which can not be answered by a single illustration ; it will admit of a wide range.
    Q. I will put it in this form : In your judgment, as a medical man, would the expression of a belief by any adult of the human species, at variance with that generally entertained by those of his fellow-beings with whom he more immediately lived, and among whom he moved, indicate the existence of any mental disease 1
    A. Ho, sir ; in my opinion, no.
    Q. Would it indicate any irrationality, any defect of the power of reasoning, on the part of such adult ?
    A. Ho, not necessarily.
    Q. [1J Suppose any one of the human species, an adult, were to express a belief in regard to the future existence of the soul, which belief, although formerly entertained centuries ago by the then civilized world, and now maintained by over four hundred millions of people as a distinct religious creed, is, nevertheless, at the present day, regarded as purely heretical and absurd by the more civilized portion ofmankind—would, I ask, the expression of such an opinion, repeatedly asserted, and maintained at times with considerable warmth of expression by that adult, indicate to you, as a medical man, the existence in him of any insane delusion, mental derangement, irrationality, or unsoundness of mind ?
    A. Ho ; not by itself alone.
    
      Q. [3] Suppose a man sixty years of age and upwards, should, ten years prior to his death, entertain, and repeatedly express it to be his firm belief that upon the death of man the soul passes into the body of some animal, without, however, asserting it as his belief as to his own soul; and then for the ten years immediately preceding his death should not be known or heard to assert such belief, and finally should die professing the faith of a church which taught that the expression of any such belief, and that such belief itself, was a heresy, —would you consider that this belief, assuming it to be a delusion, continued to the time of his death ?
    A. I understand that it is assumed in your question that a period of ten years elapsed between the expression of this belief, which is again assumed as a possible delusion, and the death of this individual—am I correct ?
    Q. Entirely so.
    A. Assuming it to be a delusion, the strong probability in such a case, amounting almost to a certainty, would be that it had not continued during those ten years ; because delusions take possession of a man ; are his main subject of conversation, are constantly being recurred to and referred to. A delusion is a man’s main thought, intruding itself upon nearly all occasions, as a general rule. For that reason, I should say that the strong probability, almost certainty, was that during that time no such delusion was entertained.
    Q. [3] Suppose such a man, under the circum stances mentioned in my last question, should, shortly before his death, sign a paper purporting to be a will, in favor of a society or corporation,-created by law for the express purpose of enforcing all laws passed or to be passed for the prevention of cruelty to animals, and for their protection, and should state in such will which he so signs, that he entertained for the president of this society, and at the time of making the will entertained, the highest respect and admiration, “he being a gentleman whose laudable, untiring, and humane exertions on behalf of the dumb portions of Grod’s creatures, has elevated him, in my estimation, far above any other man I know, or ever heard of,” and should not assign or state in the will which he so signed any other reasons for making the disposition of his property by it in favor of this society, in the way in which he did—would you from this circumstance and act on his part, believe, as a medical man, that such will or paper was so signed and executed by him in furtherance of, or as in any way «connected with, any insane delusion, irrationality, mental derangement, or unsoundness of mind.
    A. As the question is stated, I can not see the act, as described in the question, to be connected with any irrationality or delusion.
    • Q. [4] Would the fact, assuming it to be so, that by such will this man gave to this society, which I have mentioned in my last question, the whole of his property, both real and personal, amounting in value to over one hundred thousand dollars, affect or alter your answer to the last question %
    
    A. Xo, sir.
    Q. [5] Suppose a man had been entirely separated from his family and relations for over twenty-five years, having neither wife, child, nor parent—who appeared to be economical, and even parsimonious in his habits, and yet who professed a great affection for dumb animals, his age being sixty years or thereabouts, was, by last will, to leave his entire property to a society or corporation instituted for the prevention of cruelty to animals, the president of which society he had long had -in his mind, and at the time of making the will expressed it as his conviction that such president possessed his highest respect and admiration—now, would you, as a medical man, regard the fact of his executing such will, under such circumstances, excluding all these relatives, if he had any, having been estranged from them for over twenty-five years, making his will in favor of this society in consequence of the opinion which he had entertained of its president, as indicating to you tiie presence of any irrationality, insane delusion, mental unsoundness, or mental derangement at the time of the execution of the will ?
    A. Ho, sir.
    Q. In the course of your professional study, in connection with the subject of insanity, have you had occasion to examine, and have you examined, the subject of metempsychosis, or the theory of the transmigration of souls, as bearing upon the question of alleged insane delusion connected therewith %
    
    
      A. I have.
    Q. Will you state, as concisely as you can, the result of your examination upon the subject, more especially as bearing upon the question of the sanity or rationality of those who have entertained or professed to entertain any such belief or theory ?
    A. The doctrine of the transmigration of souls appears to have been not only a very ancient but at one time a. very common one. In modern times we know it more as the doctrine of Pythagoras; but when you come to study out the subject you will find that he got it from the Egyptians. How, it is held that the Egyptians were the first to believe in the immortality of the soul, and that this doctrine of metempsychosis was-the first expression of the belief in the immortality of the soul. I should have prefaced this with a definition of the term metempsychosis. The term implies the passage of the animating quality, or what is believed to be the animating quality, of the body of a man into animals successively ; and, by some who have held that doctrine—some people or believers (and when I speak, of believers I mean whole masses)-—again returning after a certain purification by its progression through these animals to the human form again. That would. seem unquestionably to have been the belief of the1 Egyptians; and it would appear that it was one of the reasons for which they preserved their mummies. The-soul or animating principle went through a sort of expiation by the passage into the different animals, until finally, say after a period of three thousand years, it was re-born humanly into the body of a young infant, and then going on again, and on its death taking up an animal direction. It was also held by the believers of this doctrine that the kind of animal that the soul went into was according to the nature of the individual; a ferocious temperament going into a lion, a cunning person into a fox, usurers into asses, and so on. The doctrine was held by the Celtic Druids, the Druids in France, the Druids in Britain ; it came originally from Germany with the Druids. It was supposed by some of the biographers of Pythagoras that he got this idea from the Druids during his residence at Crotona ; but the better historians on this subject seem to think that the Druids got many of their doctrines-from him, and that Pythagoras got his doctrine of metempsychosis during his residence in Egypt. The doctrine undoubtedly prevailed in a modified form among the ancient Greeks before the Pythagorian time. It is also still held as a belief amongst the Brahmins.
    Q. About how many in numbers are there of the Brahmins %
    
    A. There are several millions; I can not tell the exact number; the followers of that religion are counted by several millions. The form of the doctrine that was taught by Pythagoras was adopted and taught by the Grecian philosophers and metaphysicians. It seems never to have been adopted by the Romans, but we find it amongst several of the early fathers of the Christian church. Origen was a holder of that belief. It has even been attempted to prove that the belief was countenanced in the New Testament by some verses, I think in the ninth chapter of John. That matter has been discussed by some of the theologians. Origen and his followers held this belief, and held it very strongly. And it is held by some—T am not committing myself, in relating the history, either for or against any of the statements—it is held by some that the doctrine of Purgatory originated in that way. Again, in modern times, it was held distinctly by Fourier, and is still by his disciples in France.
    Q. Would you consider a man who entertained such a belief irrational ?
    A. Not necessarily, and for this reason ; that it is a belief, in the first place, that has been held by many of the first minds in the world in former - times, and even in modern times—Fourier himself being a good mind. Such beliefs are held sometimes as a mere metaphysical belief. There is a difference between a conviction and merely holding a general belief upon a subject; and for that reason I should not suppose that it necessarily involved any irrationality or mental unsoundness. Beliefs of that kind, and even beliefs which are more extravagant, do not necessarily involve unsoundness of mind, when looked at in an abstract way by a medical man.
    The doctrines of the Christian church are held variously; what one sect believes another holds to be irrational, in the ordinary meaning of the term. But a medical man asked to investigate the mental condition of a person holding such a religious belief, and finding no other evidence of delusion or of mental unsoundness generally, certainly would not be warranted in saying that such a person was laboring under any degree of mental unsoundness.
    That is my reason for answering categorically, shortly, no.
    Q. Will you name some of those prominent men who entertained and openly professed to entertain this belief, and who were always regarded, for aught that appears to the contrary, as entirely sound in mind and perfectly rational ?
    A. I have mentioned already the name of Pythagoras, who was the founder of the school of Grecian philosophy, and there is no question as to his mental soundness, and thousands of his followers—I can not recall all the names at present.....
    Plato held the doctrine and taught it, as you will see by his works.
    Q. Is there anything about it in Ovid ?
    A. Ovid refers to it in several parts of the Metamorphoses as a doctrine held. Montaigne, in his Essays, refers to it without derision. He says it is a doctrine that has not only been held in the past but is held at the present day. I think it is in his Essay on Cruelty to Animals, if I am not mistaken. All who have held that doctrine were strict believers in the immortality of the soul. They base upon that, that the soul being eternal, never ceases to be removed and shifted in its place from one body to another.
    Q. Do you know whether this doctrine or theory was regarded as a heresy by the Jews as well as the Christians?
    A. No ; it was held by the Jews very strongly, decidedly. That I omitted to state. The Pharisees believed in it as a part of their doctrine. The doctrine seems to have originated in the idea of the immortality of the soul. It was the first form in which that idea was presented to the human mind, and the doctrine was intended to reconcile the idea of the immortality of the soul, to make it understandable as against those who believed in total annihilation. It was for the purpose of presenting it in a tangible form. The soul passed into the body of one animal and then into another. And then there were modifications of it. The Egytian form gave it a purgatorial nature, and when the soul was purified it returned and was re-born. In the Brahmin form the soul returned to God or Brahma.
    • Q. Bo not persons laboring under insane delusions indicate in their writings some trace of their delusion ?
    A. Yes, sir.
    Q. In the course of your examination of the subject, have you had occasion to read carefully the writings of any of the men that you have mentioned, such as Plato for instance, in which he has expressed this idea of metempsychosis?
    A. I have read and examined the various passages of some of the prominent writers.
    Q. Asa medical man, did you discover anything in those passages indicating to you the existence in the mind of the person at the time he wrote them, of any mental unsoundness or delusion?
    A. I did not; and their general reputation• is for having been mentally very sound.
    
      Gross-examined by Mr. Coudbrt :
    Q. You say you found no traces of unsoundness in any of those learned authors—you mean that you do not think Plato was insane because he wrote about metempsychosis—is that it ?
    A. Yes, sir.
    Q. You have given us a very interesting and learned account of this belief—is that learning the result of your studies as a physician or merely as a preparation for this case ?
    A. Both.
    Q. But as a physician you have had occasion to study this question ?
    A. As a physician, no ; as a reader on metaphysical subjects in connection with the study of diseases of the mind, I have been in the habit of studying metaphysical questions and metaphysical works, &c. In other words, I was prepared to a certain degree with, reference to this very subject, in a general way.
    Q. In speaking, then, of métempsychosis as you have spoken to us, were you speaking merely as a man of learning on general subjects or as an expert ?
    A. I was speaking as a person of general information whose attention has been called to the subject.
    Q. What is there in the subject of metempsychosis that would have induced or required you. as a physician specially to examine it ?
    A. The subject has come up recently in an interesting case, and much conversation has been held generally upon it among persons interested in that subject, and my attention has been directed in that way towards it ?
    Q. What case is that?
    A. The Bonard Will case.
    Q. Then, until the Bonard Will case called your attention to it, yon had not studied it as a physician ?
    A. No, sir; I had not.
    Q. You made some preparation for this case—was it at the request of my learned adversary, Mr. Gerry ?
    A. Yes. sir.
    Q. And you went over the case with him, and made notes to answer his questions, did you ?
    A. Yes, sir.
    Q. And those notes you have referred to to-day, have you ?
    A. Those notes you saw me have in my hand—yes, sir.
    Q. I saw you had your notes in your hand during the latter part of the examination, but not the first part?
    A. No, sir; I have had no notes or answers prepared to any of tie interrogatories, with the exception of the general definitions and this matter of metempsychosis.
    Q. Those definition s you had written out in advance ?
    A. To refresh my own memory.
    Q. Now, those definitions are general ones?
    A. Yes, sir.
    Q. Are there not cases that it is very difficult to class under these definitions—I mean, do not cases run into each other to such an extent that it is frequently difficult to give an absolute definition ? For instance, you have defined belief, delusion, illusion, and hallucination ; now, are there not some cases so peculiar that it is difficult to tell where to class them, or to class them, under any particular head ?
    A. Yes, sir.
    Q. And, of course, in these answers that you give, you merely give general definitions applicable to general cases ?
    A. Yes, sir ; all definitions are more or less defective. I do not pretend to put them out as perfect definitions by any means.
    Q. Now, is it not at times difficult to draw the line between belief and delusion? Are there not some forms of belief that so closely resemble delusions that it is difficult to draw the line between ?
    A. Well, the question is somewhat general—it depends so much upon the habit of thought of an individual. A person may regard another as holding a delusion, which others again may regard as a proper belief. It is a relative matter—it is not a positive matter; and therefore I can not answer the question distinctly, yes or no. Take, for example, the various forms of belief of Christianity, in which it is held that such and such a belief of such a sect is evidently a delusion, a heresy, &c., while that belief is held by a large number of persons. A delusion is peculiar, particular to the individual himself, as a rule. You won’t find ten thousand men believing that they have glass legs, or believing in any delusion of that kind. But you will find ten thousand, and ten millions and hundreds of millions, believing in some extravagant or particular proposition. That is the difference I make. I can only answer your question by an explanation.
    Q. Then it is the number of votaries of a particular belief that would influence you in determining whether that belief is a delusion or not ?
    A. Certainly not; not the mere number. But if it is what is commonly known as a general belief—you may take, for example, the Mormons or the Shakers, who hold beliefs at variance with those commonly held —and there are many hundreds and thousands of them—but they have inherited this belief; they have been taught it as children; I can not call them delusions, however fallacious I might think the beliefs to-be.
    Q. Is there any form of religious belief, or any opinion upon such matters, that you would ever call a delusion 1
    
    A. I should hardly feel myself competent- to pronounce upon any theological or religious question.
    Q. You consider them outside of your department ?
    A. I do, sir.
    Q. And you will not undertake to say, then, what is a delusion or a belief when it comes to questions in that department—is that what I understand you to say ?
    A. By religious, I understand you to mean the general belief. I meant to say in my previous answer that I do not consider myself capable to decide upon any religious belief and condemn it as wrong or heretical.
    Q. Do you believe in the transmigration of souls into animals ?
    A. I do not—it. is no part of my belief.
    Q. What is your belief %
    
    
      A. I believe in the Christian religion.
    Q. Then, of course, you can not believe in this doctrine of metempsychosis, such as you have defined it ?
    A. No.
    Q. I am asking now in reference to the country and age in which you live—do you consider the belief in metempsychosis a general belief?
    A. It is not, to the best of my knowledge.
    Q. In the course of your experience have you known •any man or woman, or, as my friend calls it, “an adult,of the human species” of full age, who believed that his soul was going into a horse, a donkey, a dog, or •a cat ?
    A. Not to my recollection.
    Q. You have then practiced thirty odd years and have never known of such a case ?
    A. Yes, sir.
    Q. Now, when you spoke of metempsychosis you very aptly drew a distinction, if I understood you correctly, between the metaphysical belief and the actual belief ?
    A. Yes, sir; mere notional belief, and religious .'belief, if I may use those words.
    Q. And there is a great difference, is there not ?
    A. Yes, sir ; a man may hold a metaphysical belief, a notional belief, to a certain extent; he may be able to be convinced of its impropriety ; he may be able to renounce it; he maybe very violent in his disputations about it, but really have no certain conviction upon the subject. He may hold it as a probability or possibility, but have no ultimate perfect conviction on the subject; it forming no part of what is called his faith. There is a great difference between faith and a mere notional belief.
    Q. Now take the case óf a man who is actually piously convinced that his soul after death will go into the body of an animal, and will require protection in ■consequence of its being in the lower order of animals, —is that what you call metempsychosis ?
    
      A. I never have heard a part of that definition— requiring protection.
    Q. Then we will exclude that. Is that one of the forms of metempsychosis ?
    A. That is one of the forms of metempsychosis—the belief that at death, the soul or animating principle will pass into the body of some given animal.
    Q. In the answers that you have given I understood you to say that you did not hold that a man was necessarily insane because he entertained this belief in metempsychosis. Were you speaking of the metaphysical belief or the actual, real, firm belief %
    
    A. I was speaking of both—I included both.
    Q. But suppose there were other circumstances in the case that tended to delusion, would you or not consider this belief, this actual belief that the soul of the individual was going into a horse, or a cat, or a dog, one of the links which might form a chain tending to an opinion that the party was irrational ?
    A. Not unless I could connect it with another or other palpable delusions.
    Q. But if you could connect it, you'would consider it a link, would you ?
    A. Certainly, it would be a link.
    Q. Now, suppose a man of a very large estate, living in a cheap boarding-house in the poorest quarters of the city, alone, a man keeping kegs of gold under his bed, starting up at night with exclamations which are unintelligible to those who hear them—suppose him to be taken sick, to be conveyed to an hospital, to make two. wills within a few days of his death, to believe at the time that he was dying, that his soul was going into the body of an animal, and then leaving every dollar that he possessed to a society, the only object of which was to protect animals—would you consider that man rational or irrational?
    A. I should see no positive evidence of irrationality in the act.
    Q. What do you mean by positive evidence ; would you see any evidence whatever ?
    A. No evidence unless there were other symptoms or evidences of irrationality. It might be a mere fancy, a mere whim ; I do not call that irrationality. We see people affected with whims who have a fanciful imagination, who do acts under those whims, but that alone does not necessarily constitute mental unsoundness.
    Q. Is there any other theory by which you could account for such an act ?
    A. Well, the mere fact of his admitting- that he held that belief at that time, and acting under the belief, the belief not constituting a delusion, I should not call that an act of irrationality.
    Q. Then you don’t consider that belief an irrational one ?
    A. I don’t consider it a delusion.
    Q. Do you consider it a rational or irrational belief?
    A. It would be considered by certain persons, certain sects, as irrational, and others, the followers of Brahma, a large portion of the East Indians, would consider it a rational belief. I might consider the belief of the Mormons or of the Shakers as irrational, but certainly I would not, from their belief alone, pronounce a Mormon or a Shaker as of unsound mind in making a will, even in connection with that peculiar belief.
    Q. Then, you draw no distinction in your own mind between the belief of any of those sects you have mentioned and this belief which we are now speaking of; you think they stand on the same footing, and you would consider that the same degree of rationality attached to each ?
    
      A. Well, you have put to me hypothetically the question as to its being a religious and not a metaphysical belief. Am I right %
    
    Q. Yes, an actual belief I am speaking of; an article of faith, of which he is as well satisfied as you are of your own faith ?
    A. Then I should not consider that as an evidence of irrationality.
    Q. That was not precisely the question. The question that I put to you was whether you placed this actual belief in metempsychosis upon the same footing as the other beliefs that you have mentioned ; that is, the Shakers and others? Do you think they are all equally rational beliefs ? Can you answer that question %
    
    A. I can not answer that question without an explanation.
    Q. Did you ever hear of Hadfield’s case ?
    A. Yes, sir.
    Q. Do you know the circumstances of it as they have been handed down to us in the books %
    
    A. Yes, sir.
    Q. Do you know that he believed that he had to murder somebody in order to save the world \
    
    A. Yes, sir.
    Q. And going upon that belief he tried to kill the King of England ?
    ' A. Yes, sir.
    Q. Was that a delusion or a religious belief %
    
    A. That was a delusion.
    Q. Why was it a delusion ?
    A. Because it was personal to the man and' held only by himself—not a form of belief of numbers of other persons held in common by a variable number of individuals.
    Q. Then the reason that you draw this distinction and accord the other to be a rational form of belief is that a great many others believe in it ?
    
      A. Yes, sir.
    Q. Suppose a man, fully satisfied that after dissolution his soul was to go into the body of an animal, and laboring under that belief he so disposed of his property that the proceeds of that property could be applied to the protection of animals, of the class of animals in which he was to go, would you consider that a rational' act under these circumstances \
    
    A. In connection with his belief, as an article of faith, I should not see irrationality in it. or unsoundness of mind.
    Q. I don’t know exactly what you mean by an article of faith ?
    A. A religious belief.
    Q. Leave out the words and simply answer my question, if you can. I am speaking of a man in a dying condition. Suppose it was a notional belief, and that acting upon that notional belief, he disposed of his enormous estate in the way I have stated, would you consider it a rational or irrational act 1
    A. I should want to know more of the history of the individual, his family connections, whether he had children, a wife, or dependents, before I could answer it.
    Q. Then you could not answer it ?
    A. Not in the manner you have put it, without further inquiry; for that would decide very much whether he had dislikes to particular individuals of his family, his daughter or wife, and so on ; and whether he was influenced by those dislikes in connection with his fanciful belief.
    Q. Then it is impossible to give a general answer to that question without knowing the particular circumstances of the case, and you should want to inquire into those before answering %
    
    A. I should want to have them stated to me more particularly than they are in the preceding general question.
    [Then folio wed a series of questions intended to show that, witness had cited the opinions of Origen from other writers, and without consulting the original, and that Origen stated the doctrine only to condemn it; also, that witness, being an adherent of the faith of the Protestant Episcopal Church, regarded the doctrine in question as false.]
    Q. I will come back to my question. I understood you to say—and I have your definition here in writing —that an insane delusion is a false notion impossible in the nature of things. I also understood you to say, in answer to my questions, that, in yonr judgment, a belief in metempsychosis was a false notion and impossible. Now I ask you why, then, metempsychosis is not, in your opinion, an insane delusion, according to your own theory and definition %
    
    A. I answer that again as I have already attempted to, because I added that it was personal to the individual—the delusion—in a vast majority of, if not in all, cases. Metempsychosis is not personal to the individual. It is believed at the present time by several hundred millions of persons, and has been so believed for a long time. It is only within a few years that an elaborate book has been written on it in England, in which the author expressed his belief in it.
    Q. The only test is, that, in one case it is a personal belief, and in the other the belief is shared by many. Do I understand you correctly ?
    A. That is one, and a very strong differentiation between the two.
    Q. Do you consider that, in judging of the acts of a man who is now living, and has always, or for many years, lived in a civilized Christian community, your judgment or decision should be at all affected by the opinions that, may be entertained by millions of uncivilized and unchristian people ?
    A. He may have lived among the very people who held these doctrines, and been converted to them there, or gained his notions of them there. If he had lived all his life in a civilized Christian community, and had read nothing on the subject, and his mind was not of an imaginative character, or Ms imagination was not easily affected, then I might think it singular. But if he was of an imaginative or speculative mind, and he was suddenly attracted, or attracted by specious writings on the subject, he might for a time entertain such a belief, and such circumstances would influence very much my opinion.
    Q. I am not talking of the books that he had read ?
    A. Well, if he had lived among such people and adopted their notions.
    Q. Assuming that he had never lived among those millions of people that entertain that belief, would you not then consider it a personal matter to himself, or, as you express it, to say the least, singular ?
    A. Tes, sir; I should think it singular.
    Q. Do you think that your judgment should be affected at all in judging of the case that has occurred here in our midst, in a Christian and civilized community, in this nineteenth century, by the belief that may be entertained at present by the Brahmins ?
    A. It would not be.
    Q. So, whether the Brahmins believed in this or not, it would not make much difference to you in considering it ?
    A. Hot at all; I merely mentioned that as historical, and as an illustration of some of my definitions.
    Q. Where are the millions that believe it outside oí the Brahmins a.nd East Indians, generally %
    
    A. I am merely repeating history—-I do not wish to be understood as indorsing it—it is said that many of the Indians of our own country believe it; that the Indians of Central America believe it. I am not able to state the fact to you. I have not been able to satisfy myself personally.
    Q. Then, except with reference to these Indians—and you have no knowledge of that yourself—you know of no people outside of the Brahmins that entertain that belief as a class or nation—a large number of people— at the present date ?
    A. I can not recall any for the moment. I beg your pardon—I think I stated that Fourier and his disciples were inclined somewhat to that belief—indeed, I had a reference to it.
    Q. Are you able to state that it was ever the religious belief of Foarier, or of any of his disciples, that the soul of man went into animals ?
    A. I am not able to state that. I don’t know what his religious belief was.
    Q. Are you able to state that he ever taught that as a form of religious belief ?
    A. I can not say that I am.
    Q. I understood you to say the other day that in all your wide and varied experience as a man of science, you had never met one single man or woman who entertained this belief ?
    A. Never, that I recollect.
    Q. It is, therefore, so far as your opinion and experience goes, a singular belief?
    A. Yes, sir.
    Q. Is it, or is it not, in your judgment, an extravagant belief for any person ?
    A. Yes.
    Q. Whenever a person conceives something extravagant to exist, which has, in fact, no existence, and he is incapable of being reasoned out of this false belief, does it, or does it not, in your judgment, constitute, so far as that particular point goes, insanity ?
    
      A. Ho, sir.
    Q. You spoke of the religion of the Egyptians—the Egyptians worshiped animals, did they not?
    A. I believe so.
    Q. They worshiped an ox ?
    A. Yes.
    Q. If you. knew of a man of mature age, and fair intelligence, in the city of New York, who said his prayers to an ox every morning, would you consider that a delusion or not ?
    A. Ho.
    Q. And you would not consider the belief that££ the Divinity that shapes oar ends,” resided in that ox, a delusion ?
    A. Hot an insane delusion.
    Q. I was asking if you would consider it a delusion or not ?
    A. My answer was that it was not an insane delusion.
    Q. That is not a lawyer-like answer, though perhaps, scientific. I am not asking about insane delusions, but whether you believe it to be a delusion or not?
    A. Hot a delusion, according to my definition.
    Q. Then will you modify your definition and make it fit this case, and call it a delusion ?
    A. It is a delusive idea that he has ; I will say that.
    Q. Would you not define a delusion to be a delusive idea—is not that a very good definition of a delusion ?
    A. Of one kind of delusion it may be, but not of an insane delusion.
    -x- * x « x x x
    
      Cross-examined by Mr. Hiles :
    Q. I want to know what is an unsound mind, in your view ?
    A. A mind that is not sound.
    Q My question is, what is an unsound mind ?
    A. I say a mind that is not sound.
    Q. When is a mind not sound ?
    
      A. When unsound.
    Q. Are those the best answers you can give to the questions ?
    A. I can give you illustrations in answer to the questions, which will explain my answers.
    Q. Are those the best answers you can give to the questions ?
    A. I can elaborate by illustration of unsoundness of mind, probably.
    Q. Will you answer me the question in any way, what is, in your judgment, an unsound mind %
    
    A. It is difficult, sir, to give you a definite definition upon the subject; but I can answer you if you will permit me, by illustrating the various cases of unsoundness of mind. I wish to answer your question fully and fairly, but any definition which I could give you would, I feel confident, fall entirely short of what you want to learn from me, and that is why I make the answer that I do.
    Q. Give us one example ?
    A. When a man is suffering from dementia or en- . feeblement of mind. Unsoundness of mind is any departure from the normal or natural condition of mind.
    Q. Then it is any departure from the right reason that ought to reign in a human mind, is not it ?
    A. Well, then, I have got to determine what the right reason is. There is no instance of perfect soundness of mind.
    Q. Let it be what it may, I ask if, in your judgment, unsoundness is a departure from right reason ?
    A. Not necessarily from reason, because there may be a departure in" the affective faculties. It is taking mind as a whole, made up of different parts, as a complex article, and any departure from its normal condition constitutes unsoundness. There are different degrees of uusoundness. The mind is made up of various faculties, and departure from the soundness, or assumed soundness, of any one of those faculties, constitutes a degree of unsoundness of mind. Eor example, there is dementia or feebleness of mind. There may be an exaltation of some of the faculties, and then there is the maniacal condition. It is a departure whether in excess or diminution, plus or minus.
    
    Q. Take the very illustration of the belief of your church, as you have stated here, you believe it because you have been taught it, without having given your personal thought to its investigation ?
    A. Tes, sir.
    Q. Is not that the case with the great mass of men, and was not it at the time of Pythagoras ?
    A. I believe it to be the general cause of belief—it is simply a notional assent, and not conviction from the result of investigation and study—it is a religious belief.
    Q. Now, at the time of Pythagoras, the great mass of men believed that the sun went round the world every day, did they not?
    A. Tes ; and they assented to that—gave a notional assent.
    Q. And it did not prove that they were insane ?
    A. It did not prove that they were insane or had any insane delusion.
    Q. Or that they were unsound of mind ?
    A. Or unsound of mind, or had an insane delusion.
    Q. Supposing one of your associates in the medical profession, who had investigated that subject carefully, persisted in the belief to-day, that the sun went around the world every day—would you consider it an indication of any unsoundness?
    A. No, I would not.
    Q. Ton would consider him as perfectly sound and sane ?
    A. I should see no reason why not.
    
      Q. In those days there was a universal belief in Satyrs, was not there ?
    A. Yes, sir.
    Q. Now, supposing a man should persist in believing that they existed here in the park to-day, and upon his death-bed should make a will dependent upon that belief, would you regard it as any indication that he was unsound in his mind.
    A. I should think he hada speculative, imaginative mind, but it would not necessarily constitute unsoundness of mind.
    Q. In other words, you would consider him a good subject for a poet ?
    A. Yes, sir.
    Q. Now, in regard to delusion, supposing one of the gentlemen here insisted warmly that last night at midnight, in the woods on Long Island, he saw a bear, where you knew no bear was, would you call that a delusion or not?
    A How could I know that there was no bear there ?
    Q. I was supposing that you knew there was no bear there.
    A. Of course, if I was with him and saw no bear, I should say that he had an illusion or an hallucination— it does not constitute a delusion.
    Q. Now, supposing he persisted with warmth that there was one in that corner of this room at mid-day, what would you call it?
    A. And I knew that there was nothing of the kind ? It would be an illusion or hallucination—an illusion if there was something which he supposed was the bear, and an hallucination if there was nothing there—but not a delusion.
    Q. Would you consider that an indication of unsoundness?
    A. No, not necessarily. I might see the same thing. _ Persons looking at the clouds see them representing animals, and persist that they see it.
    Q. I ask about this specific thing—you would not consider that any indication of unsoundness %
    
    A. No, sir.
    Q. Now, when those things result from defective physical construction, eyesight, or anything of that kind, with a sound mind behind them, does not the person always know that it is a misapprehension, and that it only seems to exist—does not he always know that it is a mere seeming ?
    A. I have found it very difficult with persons of perfectly sound mind, affected with double vision, for example, to satisfy them that they saw only one object. They have insisted with as much persistency as a person suffering from an insane delusion.
    Q. Now, what would you call that?
    A. Double vision proceeds from some physical derangement of the organ of sight, or of the central organ —the visual axes are deranged and disturbed.
    Q, Ton say that while the mind remains perfectly clear and sound, people persist in that belief that there are two things ?
    A. I say that it is often difficult to induce them not to believe their own senses.
    Q. But is it impossible ?
    A. No.
    Q. The reason I ask that is, that Mr. Coudert asked you if the mind was incapable of being led to believe the contrary, whether you did consider it any indication of unsoundness. His word was “ incapable” of being taught to the contrary, or led to believe to the con trary. Would you consider that any indication of unsoundness ?
    A. May I ask you to repeat that.
    Q. Supposing that any gentleman present insisted that there was a bear in that corner of the room, and was incapable of being led to believe to the contrary, would you consider it any indication of unsoundness ?
    A. I should consider that at the time he was laboring under an hallucination or illusion, and as soon as that passed off, then he could be convinced—its duration might be temporary.
    Q. Suppose he was incapable of being led to believe to the contrary ?
    A. It is a matter of time.
    Q. I don’t ask yon—incapable in a minute or an hour of being led to believe to the contrary.
    A. If he persisted in it I should say Ms mind was unsound to that extent.
    
      Re-direct by Mr. Gebby :
    Q. The learned counsel mentioned to you in Ms cross-examination the celebrated case of Hadfield. Bid you ever see Hadfield personally yourself %
    
    A. I saw him in Bethlehem Hospital in July, 1839, and passed part of an hour with him—conversing with Mm.
    Q. That was long after the shooting took place ?
    A. It was nearly forty years that he and the physician, I think, told me that he had been there. I recollect from this circumstance that it was over thirty-six years—from his saying to me that the greatest event of his life since Ms being in the asylum had occurred within a day or two before I saw him ; that for the first time he had been taken down into the hall and shown, as he expressed it, the figures or statues which were there, and that for thirty-six years he had not seen them before. He was then not insane, though of weak mind ; not imbecile, but of a weak mind at that time ; and I was told by the physician of the establishment that he had always been of feeble mind, but had shown no signs, if I recollect right, of actual, positive, mental derangement ; nothing except feebleness of mind since he had been in the institution. He wrote verses, which he showed me ; and he had a stuffed cat and a great number of birds, and I bad quite an interesting conversation with him. I tried to bring him on the subject of the attempt upon the king, but he declined to say anything about that. He was in feeble health at the time. I recollect him perfectly, as if it was yesterday. He was a small man, and wore a sandy wig. He died, I think, within a year or two after that.
    [Here followed some questions as to the characteristics of Frenchmen.]
    Q. Suppose that a man had been shown for some time, when discussing theological subjects, to have become greatly excited in regard to them, and that man were subsequently to die of an illness which lasted some twenty days, that during that entire illness there had been no indication to his medical attendant either of any lesion of the brain or functional insanity, so to speak, but that in the language of the medical attendant his mind was clear to the last, should you regard the mere fact of any excitability exhibited on his part, when speaking on theological subjects, as an indication that there was any irrationality, mental unsoundness, insane delusion, or mental derangement on his part ?
    A. Ho, sir ; I should not.
    William A. Hammond, M. D., called for proponents, sworn.
    
      Mr. Gerry, after the same preliminary questions as in the case of the last witness, asked :
    Q. What do you understand by insane delusion % Give a brief definition ?
    A. By insane delusion I understand a delusion out of which the possessor can not be reasoned by evidence which would convince the majority of mankind of healthy minds.
    Q. Give an illustration of it if you please ?
    A. Well, if a man was to believe that that book [the Bible on the stenographer’s desk] was a woman, and persisted in his belief against the evidence of his senses, or against the evidence of the senses of other persons, he would have an insane delusion.
    Q. Then, as I understand you, in order to constitute an insane delusion there must be coupled with the belief, the belief in existing facts—the belief must be in reference to something which is a matter of fact, and sus ceptible of proof through the medium of the senses %
    
    A. I think so ; yes. A simple delusion is merely an erroneous or false belief, and that does not necessarily involve insanity. It is only when the person persists in a false belief against such testimony as suffices to convince a healthy mind, that it becomes insane delusion.
    Q. I want to read a definition to you to see whether you, as a medical man, agree with it. It is from Seaman’s Friend Society u. Hopper, 33 N. Y. 624: “If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself however logically upon the assumption of them existence,-he is, sotaras they are concerned, under a morbid delusion.”
    A. That is exactly what I believe.
    Q. And delusion in that sense is insanity—do you go to that extent ?
    A. Yes.
    Q. “Such a person is essentially mad or insane on those subjects, though on other subjects he may reason, act, and speak like a sensible man ? ”
    A. Yes, sir.
    Q. What is an illusion ?
    A. An illusion is a false perception.
    Q. How does it differ from an hallucination—what is an hallucination ?
    A. An hallucination is likewise a false perception, but it is not based upon a reality. An illusion is based upon a reality. If I should take that thermometer hanging there to he an angel I should have an illusion, but if I should imagine that there was an angel on the wall when there was nothing there that I could convert into an angel, that would be an hallucination.
    Q. How would a delusion differ from those two?
    A. A delusion involves the intellect; hallucination or illusion does not. If I believe firmly that that thermometer is converted into an angel, and act in accordance with the belief, I have a delusion.
    Q. That is an insane delusion ?
    A. If I am not capable of being reasoned out of it, then it is an insane delusion. I might hold it for a moment or two from some temporary increase of blood in my head, for instance, or from a blow, or from having eaten an indigestible dinner.
    Q. How does a delusion differ from a mere belief— what do you understand a belief to be ?
    A. By belief I understand the acceptance by the intellect of any proposition as true upon argument or proof but without certain knowledge of its truth. In a .good many cases I think that belief is confounded with knowledge and faith, whereas I think the three things are very essentially distinct. Belief requires some evidence, faith requires no evidence whatever, and knowledge requires actual proof. Belief differs from delusion in no essential respect whatever. A delusion is simply an erroneous belief. It simply differs in the starting point; that is all.
    Q. How does a belief differ from an insane delusion ?
    A. Because a belief is based upon circumstances which are not such as evidence insanity in the possessor.
    Q. Whereas in an insane delusion there is always something besides the mere expression of belief rvhich indicates the insanity ?
    A. A man may have an insane delusion, without any other evidence of insanity whatever.
    
      Q. Suppose a man was to express a belief at variance with that generally entertained by those of his fellow beings with whom be more immediately lived, and among whom he moved, wouid that expression of belief, in your judgment as a medical man, indicate the existence of any mental disease ?
    A. It would depend entirely upon wrhat the -belief was. If it was in regard to matters of fact it would—if in regard to matters of faith or religion it would not, no matter what it was.
    Q. Unless it was in regard to matters of fact, would it indicate in your judgment any irrationality, defect of the powers of reasoning, mental unsoundness or mental dera ngement in such a man %
    
    A. Not of itself. But if it were exceedingly absurd —if, for instance, a woman were to think that she was pregnant with a second Christ, that would be a matter of fact which would at once show her insanity. But if she was to take up some erroneous idea, no matter how absurd, and believe it firmly, that of itself would not be sufficient to show that she was insane. If she was insane, in all probability, she would give other evidence of it. You could not prove it by that belief alone.
    Q. [To a question substantially the same as Q. [1] on p. 133 the witness answered]:
    A. It would not. No matter what the belief was, if it was simply in regard to matters of faith, incapable of proof, it would not necessarily involve insanity.
    Q. [The next question was substantially the same as Q. [2] on p.134.]
    A. The mere fact of his renouncing such a belief would show that it was not an insane delusion on his part.
    Q. Why?
    A. Because insane delusions are remarkably persistent, and are not repounced in that way.
    Q. Suppose, in addition to the facts which I have-stated, that the medical man who attended him during the entire time of his last illness, had frequent opportunities of conversing with him, and of examining his condition, and was unable to detect an organic lesion of the brain, or any mental disturbance whatever, and should pronounce his mind, in his judgment, to have been clear to the last, what would be your opinion in reference to that—would it strengthen or weaken the opinion you have stated ?
    A. I should think he was sane.
    Q. You have no doubt of it ?
    A. No doubt whatever, for the reason that very much more absurd beliefs than that are entertained. We simply regard them as somewhat strange, because we are not so familiar with them as with some others. There are beliefs entertained which are fully as absurd, if I may use that expression, by people around us with whom we mingle every day of our lives and which yet do not excite astonishment, and we do not think the people insane. We have the Spiritualists, Mormons, Muggietonians, Shakers, Swedenborgians, and others, who hold very erratic notions, far more absurd, to my mind, than that of metempsychosis, and yet we do not consider them insane, and mainly for the reason that no religious belief is evidence of a man’s insanity.
    Q. [The next question was substantially the same as Q. [3] on p. 181.]
    A. I would not; because if it had been actuated by any delusion, the delusion in all probability, in a very great majority of cases, would have been shown in the will—he would have expressed something in the will in regard to his religious belief.
    Q. [The next question was like Q. [4] on p. 135.]
    A. Not in the least.
    Q. [The next question was substantially like Q. [5] on p. 135.]
    A. I would not as you state it. But if he had been unduly prejudiced against his family, if he had had any delusion in regard to them, and had estranged his property from them, T should regard it as some evidence of his insanity. But from the fact of his having been separated from them twenty-five years, and having had no intercourse with them, and that he had probably lost all affection for them, as a man naturally would under such circumstances to a great extent, I should not regard it as any evidence of insanity.
    Q. Suppose that, in addition to the circumstances stated in my last question, it.further appeared that this family of his, twenty-five years before, had voluntarily disowned all connection with him, treating him as an ontcast from society, refusing to afford him any assistance whatever when he was in poverty, they being able to assist him, would the facts I have related then indicate to you any irrationality whatever ?
    A. It would strengthen the opinion I have already given.
    Q. Suppose that during the whole- of these twenty-five years not one of this family of his had ever approached him directly or indirectly by letter, had paid no attention whatever to his existence, and had practically treated him as dead, and that he had always, on every occasion, when speaking of his family, evidenced a dislike to recur to the fact that he had ever had a family, would that alter the conviction that yon have expressed ?
    A. No, it would not, unless his dislike was clearly based upon a false notion in regard to them.
    Q. I am assuming a case where he never expressed any ground of dislike at all, but where facts had occurred such, as I have stated ?
    A. It would not.
    Q. Suppose a Frenchman, about 60 years of age, lively in his temperament, pleasant and agreeable in Ms manner, but retiring in his disposition, a simple, economical man, who often took a twenty-five cent piece or a dime and gave it to the poor ; who was very industrious, and worked hard from morning to night; who was very intelligent, had extraordinary good sense, was a workman, and lived in a cheap boarding-house with other workmen; who, although wealthy, would not live in an expensive hotel, because there was too mxich ceremony, and he did not consider himself fit for it, to xxse his own language, he preferring to live with workingmen, as he was one himself—if such a man should at times get excited when late in reaching his boardinghouse, or when detained in getting to his work, which consisted in superintending the building of his own houses, or should exhibit excitement when talking about theology, or a certain metaphysical or other belief which he exitertained, especially when teased about such subjects, becoming greatly excited—I ask whether any such conduct as this on his part, assxxming these facts to be true, would indicate to you, as a medical man, any mental unsoundness, insane delusion, mental derangement or unsoundness of mind ?
    A. It would not; for the reason that I have known sxich circumstances to exist frequently with persons who were manifestly perfectly sane.
    Q. Suppose such a man as has been described to you in my last question, without wife, child, or parent; who had been separated from his family for over twenty years, and who was very fond of animals and disliked to see them ill-treated, should have only two very intimate friends, who had been acquainted with him for fifteen or sixteen years ; that he had never spoken on the subject of metempsychosis, or the doctrine of the transmigration of souls, to one of these friends, and that he had not mentioned it to the other for thirteen years preceding his death, but that he had refeired to that-subject occasionally to others who were slightly acquainted with hixn; that, in his last sickness, the dxiration of which was eighteen days or thereabouts, the disease of which he died being bronchial pneumonia, without any indication's, however, of any lesion of the brain, his mind being clear to the last; he never referred to the subject mentioned either to the doctor who attended him, or to the priest who administered the last rites of the Church of Rome to him—suppose such a man should make a will giving clear directions in regard to all the property he owned, remembering at the time of making the will the precise numbers of his houses, and should leave all his property, amounting to nearly one hundred and fifty thousand dollars, to a society for the prevention of cruelty to animals “ for the furtherance of the humane objects of such society ”—I ask you whether you would consider such a man at the time of making such will, assuming it to have been made six days before his death, to have been irrational or laboring under any mental delusion, mental derangement, or mental unsoundness %
    
    A. There is nothing whatever in your question which, if true, would indicate the existence of insanity in any form. In fact I should doubt very much whether he even entertained the belief in the doctrine of metempsychosis. He might have had a dim impression, perhaps, at times, that it was true, as people have in regard to various theological dogmas ; but as to his believing it firmly and fixedly, I am very sure he did not, if that is a correct statement of the facts.
    Q. I understand you to say that there was no insane delusion on his part at that time, in your judgment?
    A. Ho.
    Q. In the course of your professional study in connection with the subject of insanity, have you had occasion to examine, and have you examined, the subject of metempsychosis, or the theory of the transmigration of souls, as bearing upon the question of alleged insane delusions connected therewith ; and have jtou also examined the subject of metaphysical and religions beliefs in connection with the subject of insanity \
    
    A. I have, for a number of years past—certainly over twenty years ago I began my study of those subjects.
    Q. Will you state, if you please, as concisely as you can, the results of your examination upon these subjects, more especially as bearing upon the question of the sanity or rationality of those who have entertained, ' or | rofessed to entertain, any such beliefs or theories ?
    
      A. Briefly, the answer that I should make to that question would be mainly a reiteration of what, I have already stated, and the answer I gave to a former question is based upon my study of those subjects ; and that is, that no religious belief, no matter how absurd it may be, is of itself sufficient evidence of a man’s insanity. I base that answer upon the investigation of a large number of cases, and likewise upon a very thorough reading of the subject. As regards the doctrine of the transmigration of souls, and the doctrine of metempsychosis—because, I think, there is a distinction between them—both have been held at various times of the world’s history by the most enlightened nations then on the earth. They were, and are to the" present day, held in some form or other, by the Hindoos, by the people of Siam, by the people of Thibet, by the Chinese. They were held by the ancient Egyptians, Greeks, Persians, Scythians, by the Druids, and by the Celts generally to some extent. They are held now by the North American and South American Indians, as I know from my own knowledge in regard the North American Indians. They were held by various heretical sects among the early Christians ; and then in the twelfth century by the Gnostics, and by the Manicheans, who were early heretical sects. They have likewise been held by several distinguished European men, Pythagoras, Plato, Pericles, Plotinus, by Origen, by Fourier, by Leibnitz, by Lessing, and among writers of the present day by Pierre Leroux ; and Fourrier has written extensively upon that subject. I know of my ■own knowledge that they are held by people of the present day in the city of New York. I may state that Mr. Alger, in his very learned work “The Doctrine of a Future State,” states from his own knowledge that those beliefs, in some form or other, are largely held in this country and Europe at the present day.
    Q. You stated that the belief was entertained- by the Brahmins, do you know how many of those people there are at the present time %
    
    A. There are about two hundred millions ; and there are about four hundred millions Buddhists who also hold it. The belief is held by millions of the human race at the present day.,
    Q. What is the particular belief of Brahma and Buddha upon that subject generally ?
    A. The particular belief of the Buddhists is that at death the soul goes into matter of all forms, animal, vegetable, and mineral; and it is to that form of belief that the term of transmigration of souls is more properly applied.. The doctrine as held by the Egyptians, and I think by the Brahmins and by the ancient Greeks, by Plato, Pythagoras, and others, restricts the passage of the soul into animal forms ; but the Buddhists hold that it goes into all forms of matter.
    Q. That is the distinction between metempsychosis and the doctrine of the transmigration of souls %
    
    A. Yes, sir.
    Q. Would you consider a man who entertained such a belief at the present day irrational %
    
    A. I might consider him irrational, but I should not consider him insane. People are irrational every day of their lives.
    
      Q. Do .you remember whether this belief was entertained at any time by the Pharisees ?
    A. It was held by the Pharisees and by certain heretical sects of the Jews, and is supported in the Talmud, and in the writings of Philo, a very distinguished Jew of a very early period.
    Q. Do you recollect whether anything occurred in the Fifth Council of Constantinople 1
    A. It was in that Council that it was denounced. But it was held by the Manicheans and Gnostics in spite of the decrees of any Council.
    Q. In the course of your examination of this subject, have you had occasion to read carefully the writings of any of the men that you have mentioned, such as Plato, for instance, in which he has expressed this idea of the metempsychosis and transmigration of souls ?
    A. I have read them many years ago. I have read Plato very thoroughly, I think.
    Q. Do not persons laboring under insane delusions ordinarily indicate in their writings some trace of the delusions ?
    A. I should say that they invariably do, or at least, with remarkably few exceptions.
    Q. As a medical man did you discover anything in those passages in the writings of those persons that you have mentioned, who entertained this belief, indicating to you the existence in the minds of the writers of any mental unsoundness or insane delusion ?
    A. In none of them, unless in the writings of Fourier, which I have only read to a limited extent. I do not consider that Fourier was insane at all; I think he was eccentric ; he was upon the border of insanity ; he was impractical; but I am very far from expressing the opinion that he was insane. An eccentricity is to a certain extent mental unsonndness.
    
      Cross-examined by Mr. Cotjdert :
    Q. In giving the answers that you gave to my brother, Mr. Gerry, where he recited certain facts, of course you assumed those facts to be truly stated ?
    A. Of course.
    Q. And you assumed that there were no other facts inconsistent with that statement of facts ?
    A. Certainly.
    Q. Might there not be such circumstances existing that the actual belief of a man in metempsychosis, followed up by acts based and predicated upon that belief, might lead you to believe him to be insane in whole or in part %
    
    A. Undoubtedly; just as the belief in Christianity would sometimes.
    Q, Is there any case in which the belief in Christianity would induce you to believe a man to be insane 1
    A. Yes.
    Q. Will you state an instance ?
    A. I have instances in my consulting room every week of my life, I think.
    Q. Where belief in Christianity is evidence of insanity \
    
    A. Yes.
    Q. Will you give us an instance %
    
    A. I can give one that happened to me this morning, of a lady who came to my office, who firmly believed that she had committed the unpardonable sin, which condition of mind was brought on merely from excessive application to her religious duties.
    Q. I understand you now. That you do not consider to be an evidence of her belief in Christianity \
    
    A. No. I say entirely independent of belief.
    Q. It is an overburdened conscience that had become insane %
    
    A. Yes, sir.
    Q. Might you not consider that a belief that the human soul is going into the body of an animal, in connection with other circumstances, indicated insanity ?
    
      A. Undoubtedly.
    Q. Then there might be a statement of facts inconsistent with the statement supposed by the other side which would, of course, modify your judgment ?
    A. Undoubtedly.
    Q. You say that there is no form of religious belief, however absurd, that, in your mind, would indicate insanity ?
    A. Ho form of religious belief based upon matters of faith.
    Q. How is it with regard to what the learned doctor who preceded you calls a notional belief; that you distinguish from a matter of faith, do you not?
    A. I did not hear Dr. Clymer’s evidence upon that subject.
    Q. You know what a notional belief is, as distinguished from a matter of faith, do you not?
    A. Well, I have an idea of what a notional belief is, but it may not accord with Dr. Clymer’s.
    Q." In other words, you doctors disagree sometimes ?
    A. Just like other people.
    ■ Q. Proverbially ?
    A. I don’t think we do more than preachers or lawyers ?
    Q. You distinguish between matters of faith and matters of fact—is it not sometimes a little difficult to draw the line between what may be a matter of faith and a matter of fact ?
    A. I think not.
    Q. For instance, suppose a man believes theoretically or metaphysically, that after death his soul will go into an animal, that would be a matter of faith ; there is no fact about that ?
    A. Ho.
    Q. But supposing that you are about putting an end to the existence of a cat that is suffering from a broken limb, or something of that, kind, and he strenuously insists that you shall not clo it, because he says there is a soul of a man in it, is not that a matter of fact ?
    A. Ho; it is a matter of faith entirely. If he should say, “Don’t kill that cat, for I saw the soul of a man go into it,” that would be a matter of fact, and would evidence his insanity.
    Q. But if he simply observes, “There is a cat, don’t kill it, because there is a soul of a man in it,” you still consider it a matter of faith, and it would not shake you as to his sanity %
    
    A. Hot in the slightest.
    Q. You would still consider him sane ?
    A. He might be insane, but that circumstance itself would not show his insanity.
    Q. But would it not be one link in the chain if there were other circumstances pointing to the same end ?
    A. If there were other circumstances it might be a link; probably would.
    . Q. I understand you to say that eccentricity goes out upon the border line. Is it not at times difficult to draw the line between eccentricity and insanity ?
    A. It sometimes is extremely difficult.
    Q. Understand that I am not now speaking of general insanity, but of a person who is sound on all subjects but one particular one—that is monomania ?
    A. Yes, sir.
    Q. It is, then, extremely difficult at times to draw the line ?
    A. It is extremely difficult. I presume the great point of distinction is that the ideas of an eccentric person are generally connected with himself—almost entirely so, and are of such a character as to bring him prominently before his fellow-men—to make him notorious.
    Q. Would the fact that a man of mature years and fair intelligence, who had on many occasions expressed a firm belief in metempsychosis, and when sick, within a few hours of his death, making a will leaving all Ms estate to a society for the protection of animals, ignoring all the claims upon his bounty, ignoring all the usual channels of charity in which a dying man is apt to let his money go, ignoring the claims of his kin, and assuming that he had relatives that were very near to him; assuming, moreover, that that man, three days before, had made another will in which he provided for friends, or persons who claimed to be his friends, and assuming that that change was made without any apparent cause or reason, and within a few days or hours of his death—would you not consider that those circumstances were of themselves some indication that the man’s mind was not sound %
    
    A. The fact of his having made a will three days before, which your question leads me to suppose is regarded as a sane will, and then three days after making a will which is now regarded as insane, would show that whatever insanity he was affected with had taken its origin within the three days; and such a will of itself, I simply hearing the statement of facts as you have given them, without having any opportunity to inspect the will, or knowing any of the attending circumstances, might excite some suspicion in my mind. It would excite suspicion no matter what institution he left his property to. When a man disowns his relatives it is some evidence that things are not right; but it may all be explained by the attending circumstances.
    Q. Row, suppose, that at the time that this man, whose case I have supposed a moment ago, made this will now in controversy, he declared that the will he had made three days before, was made when he was incompetent, when his mind was not right, when he did not understand what he was about—would that be an additional circumstance of suspicion %
    
    A. He declares that, when he makes the last will
    Q. Tes ; and he is three days nearer death ?
    
      A. And he declares emphatically that his mind was not right when he made the first will %
    
    Q. That he did not understand the first. Would you not consider that also a suspicious circumstance %
    
    A. I should not know whether the suspicion should attach to the first will or the second.
    Q. But it would attach to one of the two ?
    A. Yes; to some extent; but I should not know whether he was right when he executed the second will or the first will.
    [Here followed a series of questions intended to show that witness had not correctly ascertained or stated the opinion of Origen.]
    Q. Among the data that were contained in the question put by my learned friend, it was stated that this man’s family had renounced him—had never approached him by letter or otherwise—and had refused to aid him when it was in their power to do it. Suppose that part of the statement in the question was untrue, might not your opinion be modified; or do you disregard that entirely, and consider it of no consequence that they should have renounced him, and refused to approach him or have anything to do with him ?
    A. It would not modify my opinion even if there had been no active refusal on their part. The mere fact of the separation for twenty-five years from relatives Avould, I think, lessen in a very material degree the ordinary love which a man feels for his relatives, especially if they are not very near relations—not children.
    Q. Suppose he had very near relations, and suppose some were young children, not his own, but a brother’s or sister’s, who, in the nature of things, could have done him no possible harm, and suppose none of those relatives had ever done him an injury, would you still think it natural that they should not come back to his memory when he was making an instrument of this kind, and he was about to die %
    
    A. I think it is natural but unusual, although I have seen so many cases where all love was dissipated by absence, that I should not attach much importance to that fact.
    Q. Still it is unusual %
    
    A. Yes, sir.
    Q. Would not the coincidence of many unusual circumstances aid you in arriving at the conclusion that the man’s mind was unsound %
    
    A. It would depend upon the character of each individual circumstance. One of itself might be sufficient, and yet if they are not of great moment, a thousand would not be sufficient.
    Q. But one unusual one might suffice %
    
    A. Yes, sir.
    Q. Do I understand you to say that a belief in metempsychosis prevails in the city of New York <
    A. I do not say it prevails ; I say it is held in the city of Yew York by some persons.
    
      Elbridge T. Gerry, in support of the will, contended:.
    —I ISTo insane delusion whatever was entertained by the testator (Seguine v. Seguine, 4 Abb. Ct. App. Dec., 191 ; S. C., 3 Keyes, 663 ; Gass v. Gass, 3 Humph. (Tenn.), 278; Batsford v. Alderson, 3 Hagg. Ecc., 574; Thompson v. Quimby, 2 Bradf., 449 ; University of London v. Yarrow, 23 Beav., 159; S. c., 2 Jurist, N. S., 1125 ; S. C., affirmed on appeal, 1 De Gex & J., 72 ; S. C., 26 Law Jour., Ch., 430 ; Marshall v. Means, 3 Jurist, N. S., 790).
    II. The bequest to the society was valid. 1. It has power to take by bequest (Sherwood v. Am. Bible Society, 4 Abb. Ct. App. Dec., 227; S. C., 1 Keyes, 561). 2. It was created by special charter, and not organized under the benevolent societies’ act; so that bequests to it of any amount are valid (1 Latos of 1868, ch. 469, p. 1019 ; Laws of 1848, ch. 319, § 6, p. 348 ; Harris v. Slaght, 46 Barb., 470).
    III. There was no equitable conversion of the personalty into realty upon the death of the testator. (1) The direction to his executors affected only the mode of investment (Dorland v. Dorland, 2 Barb., 81). (2) If the investment clause constitutes a restriction upon the power of alienation, it is repugnant to the prior absolute gift and void (Wetmore v. Parker, 52 N. Y., 459 ; Manice v. Manice, 43 Id., 384; Schettler v. Smith, 41 Id., 328 ; Harrison v. Harrison, 36 Id., 543; Lovett v. Grillender, 35 Id., 617; Oxley v. Lane, Id., 340; Post v. Hover, 33 Id., 596; Leonard v. Burr, 18 Id., 103 ; Savage v. Burnham, 17 Id.-, 561). (3) The doctrine of equitable conversion proceeds upon the principle, that what was intended to be done, is in equity regarded as done. It is invoked only to sustain a bequest— never to overturn it (Lovett v. Kingsland, 44 Barb., 564; Walker v. Denne, 2 Vesey, Jr., 176; Wheldale v. Partridge, 5 Vesey, Jr. [Am., ed.], 197, note; 1 Story Eq. Jur., % 64). (4) The power of invoking the doctrine is vested in the beneficiary under the will—not in a contestant; and the beneficiary may elect to take the property as it is and prevent its conversion (2 Story Eq. Jur., § 793 ; 1 Roper on Leg., 372; Rashleigh v. Master, 1 Vesey, Jr., 201, note a. ; Kirkman v. Miles, 13 Id., 338; Reed v. Underhill, 12 Barb., 117; Cruse v. Barley, 3 P. Wms., 22 ; Craig v. Leslie, 3 Wheat., 577, 585; Newby v. Skinner, 1 Dev. & Bat. Eq., 488; Shadforth v. Temple, 10 Simons 184). ' (5) In any aspect of the case the clause of the will applies only to money and not to other personalty (Mann v. Mann, 1 Johns. Ch., 231; S.C., affirmed in 14 
      Johns., 1; Cowling v. Cowling, 26 Beav., 449 ; Slingsly v. Grainger, 5 Jurist, N. S., 1111; In re Powell, Id., 331; Gibbs v. Lawrence,7 Id., 137; Stein v. Ritherdon,37 Law Jour. Ch., 369 ; Lowe v. Thomas, 5 De G., M. & G., 315; Beck v. McGinnis, 9 Barb., 59 ; Gosden v. Dotterill, 1 Myl. & K., 56; Ommaney v. Butcher, Turn, & R., 212).
    
    IY. The society claims title to the lands covered by the devise, under a special act of the legislature (1 Laws of 1871, ch. 76). (1) That title is valid against all alien heirs of the testator, if any there are (Heney v. Brooklyn Ben. Soc., 39 N. Y., 334; Larreau v. Davignon, 15 Abb. Pr. N. S., 367; Kennedy v. Wood, 20 Wend., 230). (2) The act is a valid grant by the State, of the lands devised, if the devise itself be inoperative, and its form is sanctioned by precedent (Laws of 1852, ch. 10, 12, 295 ; Wadsworth v. Wadsworth, 12 N. Y. [2 Kern.], 379 ; Trustees of N. Y. P. E. School, 31 Id:, 574; Bascom v. Albertson, 34 Id., 600; Swasey v. Am. Bible Soc., 57 Maine, 523).
    Y. The legatees under the prior will have no standing in court, as they are not within the enumeration of the statute (1 Latos of 1870, ch. 379, § 11).
    
      John G. Boyd, Leon Abbett, and W. J. A. Puller, for the executor Campbell.
    
      Frederic It. Goudert, in behalf of the Consul-General of France and the alleged heirs, insisted :
    I. The will violates the statute against perpetuities (1 R. S., 672, § 15; 4 Kent Com., 283 ; 2 Burr., 873 ; Everitt v. Everitt, 29 N. Y, 39, 71; Hone v. Van Schaick, 20 Wend., 564; Beekman v. Bonsor,  23 N. Y., 298; Adams v. Perry, 43 Id., 487).
    II.» The void directions can not be disregarded  Beckman v. Bonsor, supra).
    
    
      III. The devisee had no capacity to take by devise (3 Reo. Stat., 55; Owens v. Miss. Soc., 14 N. Y., 380; McCortee v. Orphan Asylum Soc., 9 Cowen, 437). And no subsequent legislation could cure the defect (White v. Howard, 52 Barb., 394; affirmed in 46 N. Y. 144; Hough v. Am. Baptist Miss. Union, Id., 682). 
    
    IV There was an equitable conversion of all the personalty into realty (Owens v. Miss. Soc., supra; Cutting v. Lincoln, 9 Abb. Pr. N. S., 440; Craig v. Leslie, 3 Wheaton, 563 ; State v. Miltbank, 2 Harringt., 18; Kane v. Gott, 24 Wend., 641 ; King v. Woodhull, 3 Edw., 79; Wright v. M. E. Church, Hoffm., 202).
    Y. The testator firmly believed in the doctrine of metempsychosis, and the testamentary act of the testator was the result of insane delusion (Prichard on Insanity, 15, 16, 65, 67; Browne Religio Medici, % 37 ; Alger Doct, of Future State, 86, 483, 484; 1 Lecky Rationalism, 40, 43, 70, 139 ; 1 Mosheim Eccl. Hist, pt. 2, ch. 3, p. 90; 1 Essai du Dogm. Cath., 126 ; Enc. Brit, in verbo 1 ‘ Metempsychosis ; ’’ 3 Butler Philolog. and Philos. Works, 245-8 ; 5 Id., 166; 1 Lecky Hist. European Morals, 386 ; 7 Southey Works, 120, 381; 4 Id., ch. 127; Browne Med. Jour, of Insanity, Passion'. Waring v. Waring, 12 Jurist, 947; S. C., 6 Moore P. C., 341; Smith v. Tebbitt, Law Rep., 1 Prob. and Mat. 398 ; 3 Addams, 79 ; 1 Beck Med. Jour., 650 ; Stanton v. Wetherwax, 16 Barb., 259 ; 6 Serg. & R.56; Hopper Will Case, 33 N. Y., 619 ; Banks v. Goodfellow, Law Rep., 5 Q. B., 549 ; Redfield on Wills, § 11; Dew v. Clark, 1 Addams Ec., 279).
    
      John K. Porter, and W. W. Files, for the legatees under the prior will, contended:
    I. These legatees have a statutory right to appear and contest the probate (Walsh v. Ryan, 1 Bradf., 434; Turhune v. Brookfield, 5 N. Y. Burr., 220 ; Foster v. Tyler, 7 Paige, 51). 
    
    II. The revocation clause in the will propounded falls to the ground if the will is void (Denny v. Barton, 2 Phillimore, 577; In re Merritt, 1 Swab. & Frist., 112 ; S. C., 4 Jurist, N. S., 192 ; Powell v. Powell, Law Rep., 1 Prob. & Div. 212; Lemage v. Goodban, Id., 62; Van Wert v. Benedict, 1 Bradf. 121; Onions v. Tyler, 1 P. Wms., 345).
    III. The direction to invest, is an imperative order to convert into real estate the whole of the personalty (Prichard v. Prichard, Law Pep., 11 Equity, 232, 235 ; Stocks v. Barre, 1 H. R. V. Johnson, 56 ; Grosvenor v. Durston, 25 Beav., 99 ; Whately v. Spooner, 3 Kay & Johnson, 542; Waite v. Combes, 5 De G. & Sm., 679 ;, Morton v. Perry, 1 Mete. 448 ; Caldecott v. Caldecott, 1 Younge & Col., 323 ; Cookson v. Reay, 5 Beav., 22; Parker Mills v. Comm’r of Taxes, 23 N. Y., 244 ; Bunn v. Vaughan, 1 Abb. Ct. App. Dec., 253 ; S. C., 3 Keyes, 345 ; Tathem v. Drummond, 34 Law Jour., Ch., 2).
    IV. The illegality of a disposition has no effect upon the meaning of the testator’s words ; as the court will construe these according to their plain meaning (Gott v. Cook, 7 Paige, 521; Bulteel v. Plummer, Law Rep., 6 Chan. App., 165 ; Cattlin v. Brown, 11 Hare, 375; 1 Jamran on Wills, 267, 270, 274, note, n).
    
    V. The will propounded creates a perpetual trust of the personal estate in the executors, which is void under the Revised Statutes (Adams v. Perry, 43 N. Y., 497-9).
    
      
       Compare Austen v. Graham, 1 Spinks, 357; and see Medico Legal Papers, 1st series, 114, 204, 467.
    
    
      
       See decision on appeal in Harris v. Am. Bible Soc. (2 Abb. Ct. App. Dec., 316).
    
    
      
       The decision below in this case is reported as Beekman v. People, 27 Barb., 260.
    
    
      
       Compare Van Nostrand v. Moore, 52 N. Y., 12.
    
    
      
       See. also, Leslie v. Marshall, 31 Barb., 560 ; Downing v. Marshall, 1 Abb. Ct. App. Dec., 535.
    
    
      
       See, also, Greeley’s Will Case, 15 Abb. Pr. N. S., 393.
    
   The Surrogate.

The deceased was a native of France, who came to this country about 1849, and became a citizen of the United States by acts of naturalization, and died at the age of over sixty years, at St. Vincent’s Hospital, in this city, on February 20, 1871. He left a paper propounded as his last will and testament, bearing date and executed on the 14th day of that month, which is as follows:

The Last Will and Testament of Louis Bonard.

u “In the name of God, Amen. I, Louis Bonard, of the city of New York, being of sound mind and memory, and considering the uncertainty of this life, do therefore make, ordain, publish and declare this to be my last will and testament—that is to say: First: After all my lawful debts are paid and discharged, I give and bequeath and devise unto the “American Society for the Prevention of Cruelty to Animals,”' (of which said society Henry Bergh, Esquire, of the city of New York, is president, and for whom I have long entertained, and now entertain, the highest respect and admiration, he being a gentleman whose laudable, .untiring and humane exertions on behalf of the dumb portion of God’s creatures has elevated him in my estimation far above any other man I know or have heard of), all and singular my real estate, property, lands, tenements, houses, messuages, and lots of ground, wheresoever the same may be found or situate, together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining—including : [here follows a description of the real éstate.]

“To have and to hold all my said hereinbefore devised real estate and immovable ■ property, lands, houses, messuages, tenements and lots of ground, with their, and each and every of their hereditaments and appurtenances, unto the said “American. Society for the Prevention of Cruelty to Animals,” as its own proper freehold and absolute property, free from all incumbrances, to be by the said society and the said president thereof, used, occupied, enjoyed, and disposed of for the benefit of the said society in such manner as to the said president thereof shall seem meet and proper.

“I also give and bequeath unto the said ‘ American Society for the Prevention of Cruelty to Animals,’ all and singular my movable property, goods, chattels and effects, and moneys, and sums of money, and debts, and accounts due me, and checks, bills, and promissory notes, and bank-book and bank account, and all sums of money which from any source shall in any wise hereafter become due and payable to me, and every other thing of any value which I.possess now or may hereafter become possessed of, to be by the said ‘ American Society for the Prevention of Cruelty to Animals,’ and the president thereof, appropriated and applied to the use and for the benefit and furtherance of the humane objects of said society. In fact, I will, order and desire, that ever}7thing I am now possessed of, or hereafter may be possessed of, and all my property, real and personal, movable and immovable, shall be the sole and absolute property of the said ‘ Society for the Prevention of Cruelty to Animals,’ after my decease.

“ I further will and desire that all my said real property shall be by the said ‘American Society for the Prevention of Cruelty to Animals,’ retained in its ownership and possession for its benefit, and not sold or aliened by said society, or transferred to any other person, or society, or owner whomsoever.

“And further, I will and order that all moneys or sums of money, which may be coming to the said ‘ Society for the Prevention of Cruelty to Animals ’ from any source by virtue of this will, shall be invested in real estate property by my executors hereinafter named, for the sole, exclusive and perpetual use, benefit and enjoyment, of the said ‘American Society for the Prevention of Cruelty to Animals.’

“Likewise, I make, constitute, and appoint Henry Bergh, Esq., president of said society, and Archibald H. Campbell, Esq., his associate, to be executors of this my last will and testament, hereby revoking all former wills by me made.

“In witness whereof,” &c. [Here followed the usual clauses of attestation, with signatures.]

According to the petition for probate filed by one of the executors, the decedent left him surviving no known heirs or. next of kin.

On the return day of the citation, which was issued and published according to law, counsel appeared for the executors and sole legatee named in the will, and other counsel appeared, in opposition, for certain legatees mentioned in an instrument of prior date, which has been offered for probate, but is not directly at issue in this present controversy; and other counsel also appeared to oppose on behalf of the Consul-General of France intervening for alleged next of kin and heirs in that country.

Objections to such probate of the instrument in question, were filed by said contestants, all of whom, in substance, alleged that the same was not the last will and testament of the decedent; that it was not his free, unconstrained and voluntary act; and the objections of the counsel for the Consul-General, also alleged that the decedent “wras not of sound mind, memory and understanding; but, on the contrary, that his mind was unsound, his memory impaired, and his understanding weakened by sickness and various other causes ;” and, further, that “at the time of the execution of the said instrument, and for a long time prior thereto, the said Bonard was affected by, and subject to, insane delusion, which guided and controlled him in the execution of said last will and testament; and that, had it not been for the existence of such insane delusion, he would not have executed said instrument purporting to be his last will and testament, and which instrument wholly disregards the claims of those who should, and otherwise would,-have been objects of his bounty.”

It appears from the testimony that all the formalities of execution required by the statute of wills of real and personal estate were complied with, and this was not disputed by either of the counsel for contestants, on the argument

I. The first question in the case, therefore, to be considered, is, that of testamentary capacity ; and the inquiry, on the objections and testimony before me is, mainly, whether the decedent, at the time he executed the alleged will, was of that sound mind and disposing memory which the law requires to be possessed by a testator, or whether the doctrine of metempsychosis, alleged to have been believed by the decedent, constituted such insane delusion as to have so operated upon his mind that he was rendered incapable of making a testamentary disposition of his estate.

Several witnesses, called by the counsel for the alleged next of kin and heirs, testified to. statements made by the decedent, wherein he expressed the belief, at different times, that the souls of men, after death, passed into animals. It was, therefore, urged that this belief was an insane delusion, and that it so affected Ms mind against the natural claims of relatives as to influence him to bestow all his property, real and personal, upon the “American Society for the Prevention of Cruelty to Animals,” named as the sole legatee of the will in question.

There was no important amount of evidence adduced, otherwise, tending to show an insane mind. He was a man of fair education and intelligence; his habits were frugal and temperate ; he gave his personal attention to his property, which, by his industry and watchfulness, had accumulated to a large amount.

This belief of what is known as metempsychosis, which, simply stated, is a speculation as to the destiny of the soul after death, is urged as an evidence of the insanity of the testator.

To no human being has been given the positive knowledge of an existence after death. The instincts of the human mind prompt us to believe, or at least to hope, that, although there may be a death of the body, yet that there is an intellectual or spiritual part of our nature which survives in some form or other. But, in a logical sense, there is no major premise of knowledge ; it is, to all of us either a matter of speculation, or a belief based on the religious doctrine or tenets which we accept. To almost every man there is, to to him, some evidence that there is a higher power, whatever that power may be, which has created this world, and which governs it. The manifestations which surround him on every side, confirm him in that belief, though what that power or Being is, he can, with his finite knowledge, have no definite conception; and, therefore, his views as to a future state rest merely on philosophical speculation, or the faith of that religion which he accepts as his creed and is taught by its priests ; and “faith is the evidence of things not seen.” The world is divided into many sects, each sect presenting a creed more or less different as to a future state. This very doctrine, metempsychosis, as shown in this case, has been believed in by Pythagoras, Plato, and others of the ancient philosophers, and sages of the East, and even, in modern times, by intellectual, wise, and good men, and is, at this day, accepted by a larger portion of the human race, on the globe, at large, than those who reject it.

Having seriously considered this subject, with reference to the nature and limited capabilities of the human mind, and the differences not only of race, but -of men of the same race, living under the same civil and religious institutions, and resulting from origin, education and circumstances ; and also borne in mind the freedom of individual conscience, favored by the society in which we dwell, and by our laws, and the multifarious fofms and shades of opinion, on all subjects, which are consequently engendered among ns, and must be tolerated, whether as means of arriving at truth itself, or, as wise, or mistaken, methods of happiness, which each person has a right to select for himself, or as heresies and error in individual cases, inevitably growing out of the large liberty accorded to all; and taking, as 1 feel compelled, a comprehensive and liberal view of the subject,—my reflections have led me to say that I can not commit myself to what I would deem an extravagant and unjust stretch of judgment of a court of justice, to hold, upon the question of the condition or destiny of the soul of man, after the death of the' body,—of which no man has more positive knowledge than can be expressed by his individual belief,—that insanity, or a delusion, to be characterized as insane, as respects competency to dispose of property by will, for a purpose, which might not, otherwise, than for an alleged delusion, have been entertained, but which pur-, pose, in itself considered, is entirely rational and explicable on other grounds, is to be ascribed to one who honestly and sincerely had faith in the doctrine of metempsychosis, and who, having no family or any near or known remote relations, bequeathed his entire estate to or for a society for the prevention of cruelty to animals.

It appears to me that, if a judicial officer should assume, that merely because a man earnestly believed in that doctrine, he was insane or labored under an insane delusion, or monomania., incapacitating him for making a will, if prompted by that faith, but, though consistent with it, wholly rational in its provisions, it would not fall very far short, in principle, of assuming that all mankind who do not believe in the uarticular faith which the judge accepts, respecting the future state, are more or less insane, or the victims of an insane delusion.

This question is entirely within the domain of opinion, or faith, and not of knowledge. A man may properly be assumed insane upon evidence that he is governed by hallucinations which are physically impossible to the knowledge of all sane men, and which are contrary to the evidence of the senses, or who is influenced by delusions, which are the creation of diseased reflective faculties.

Hence, the opinion as to a future state, of which no man has positive knowledge, and in regard to which mankind have always differed, and do widely differ today, even in the most civilized countries, and among the most intellectual of men, can not, in any respect, be deemed evidence of insanity ; the only rule by which the insanity of one of certain opinions can be determined, being by some test founded on positive knowledge.

The insanity of an opinion must be established only with reference to means of knowledge accessible to men of common minds and understanding, and not upon the results of- profound scientific researches or experiment, or scholastic theology, or religious tenets concerning the nature of the infinite, or the destiny of the race beyond the present, which, itself, is too vast and mysterious a domain for the finite mind to comprehend ; and if we are so much at fault, or deficient, and so at variance in opinion of the truth of the present, how can we presume to hold one insane, as to our nature and destiny in the future ?

Moreover, if a court is to ascribe insanity to a man, or a class of men constituting a sect, on account of his or their opinion or belief as to a future- state, and a particular sect had, in fact, attained to a real knowledge of that future, the logical deduction would necessarily be, that a major portion of mankind, comprised in all other and different sects, were of unsound mind or monomaniacs on that • subject. If it be the case that such knowledge has been so attained by a sect or known body of believers, the question remains, which it is, and what tribunal is to exercise the judgment cf determination.

But what degree of practical importance has the question of the testator’s belief in the peculiar doctrine referred to, in this case ?

It is not proved that any act of his life in regard to Ms property was insane, or that the peculiar opinion entertained by him, respecting the destiny of man or the form or condition of his future existence, and claimed to be a sign of mental disease, or of an unsound mind, manifested itself in the use or disposition he made of his money or property, in his lifetime, or that the management of his affairs was characterized, in any manner, by such, or, any, peculiar opinions concerning the nature of man or his future life ; and, so far as the proof appears in this case, the testator’s general con duct of his business affairs did not distinguish him from a multitude about him ; and in his, no more than in their case, indicated unsoundness of mind.

But it is not strongly claimed that the testator was otherwise unsound in mind than that he was a monomaniac on the subject of the transmigration of souls, and that, in consequence of that, he made the will in question. There is no proof of any declarations he ever made connecting such opinions with his intended disposition of property by will. Mo such opinions were expressed or alluded to, nor was there any conversation on the subject, when the will was prepared or executed, nor does it appear that he alluded to any such opinions, for along time before, thong li he may have entertained them. It does, however, appear, that in his last illness, and about the day the will was made, the testator received the Holy Sacrament at the hands of a priest of the Catholic Church, to which he had formerly belonged, and in which he was reared. It therefore seems to be an inference only, that the will was the offspring of those opinions. I cannot decide such to be the fact, on the evidence. The will is silent about such opinions, and, in none of its provisions, imports that the testator held them. It justas much imports that his opinions were those of annihilation, or that no soul survives the body, and probably it would not be claimed that the believers in that doctrine are, on that ground alone, incompetent to make a will; and in fact, a will, such as is before me, though nothing is given to individuals, or for the direct benefit of the human, race, does not necessarily import that the testator was not a believer in the most enlightened religion known in our midst. It would, it is trae, be a singular act for one thus enlightened, so to devote a large estate, but the object is a very worthy one, and has the commendation, and commands the respect, of the best minds, and the sympathies of all humane- people. The commission of cruelty to certain useful animals has long been punishable in this State as a misdemeanor, and the prevention of such cruelty, besides being right, has even its salutary moral effectupon man himself, in the sense that all forms of cruelty inflicted by Mm are, moré or less, the expression of violent passion or of insensibility, tending to retard his own moral advancement; and now, organizations to prevent cruelty to animals exist extensively here and in Europe, and to that object, liberal contributions are made by our most charitable and thoughtful citizens from year to year, and no reflecting person will withhold his approval of expenditures of money for the purpose, as among the laudable movements of the age. How, then, can it be urged that the bequest of the testator’s entire property to the society named, is either, in itself, irrational, or not reconcilable with a sound mind, or that it implies even a belief in the transmigration of souls of men after death, any more, necessarily, than any other forms of belief, that are, generally, in our country accepted as true 1 It is, then, impossible, or it would certainly be a violation"ÓT established principles of law, for me to hold this will to be wholly the offspring of the peculiar opinions of the testator respecting the souls of men in the future, when the case entirely lacks evidence of declarations by Mm, connecting those opinions with the testamentary act, or expressing a purpose of making such a will because he so believed; and I am not prepared to say that, even if such evidence had been produced, I would feel required to take a different view of the sanity of the act, when, as in this case, the testator had neither wife nor child, father or mother, or any known, near or remote, relatives living on the earth, or others on whom hé was, or felt himself, under obligation, to bestow his property. lie had no relatives known to Mm,—none had followed him in his career, or taken any interest in his welfare, comfort or happiness ;—and not until after a long life, successful in the accumulation of an estate, and after the journals had promulgated, here and abroad, that quite a fortune is left, is there any claim of relationship to him ; and while the French Consul-General at New York has properly intervened in these proceedings, to save the legal rights 'of the subjects of France, who may be heirs at law or next of kin to the testator, and, by his counsel, has diligently performed his duty to his government, and by his agents in France, endeavored to make known, there, the pendency of these proceedings, the period of over eighteen months has elapsed since testator’s death, and it is not yet clear to me that a single heir-at-law or next of kin in fact, has presented himself, although months ago a commission was issued to France, at the instance of the consul-general, to take proof on the subject, but is not yet returned as executed. So that the argument, made at the early stage of this preceding, and since, that this will ignores the claims of relatives upon testator's bounty, and should be looked upon with disfavor or suspicion, has quite lost such degree of force as it originally had.

The result of my reflections on this branch of the case is, therefore, that the will in question is not impeached as a testamentary paper, on the ground of the mental incapacity of the testator.

The question of mental capacity having therefore been determined, as well as that of proper execution, the instrument propounded would be entitled to admission to probate as the last will and testament of decedent, as an entii'ety, unless there be ground for a different decision in respect of its constituting such last-will, depending on my determination of the question of the validity of the devise and bequest contained in the paper ; the same having been submitted to my decision under Laws of 1870, ch. 359, § 11, which is as follows :

“In any proceeding before the said surrogate to prove the last will and testament of any deceased person, as a will of real or personal estate, or of both real and personal estate, in case the validi ty of any of the dispositions contained in such will is contested, or their construction or legal effect called in question by any of the heirs or next of kin of the deceased, or any legatee or devisee named in the will, the surrogate shall have the same power and jurisdiction as is now vested in and exercised by the supreme court to pass upon and determine the true construction, validity and legal effect thereof ; he shall enter in his minutes any decision he may make in relation thereto, and any of the heirs or next of kin of the deceased, or any of such legatees or devisees, may appeal therefrom in the same manner, and with the same effect, in every respect, as is now provided by law in relation to appeals from decisions of surrogates, admitting wills to probate or refusing the same.”

II. As to the validity of the devise of the real estate of which decedent died seized.

The statutes of this State, applicable to this question, provide,, that all persons, except idiots, persons of unsound mind and infants, may devise their real estate by a last will and testament, duly executed, according to the provisions of this title.

Every estate and interest in real property, descendible to heirs, may be so devised.

Such devise may be made to every person capable by law of holding real estate ; but no devise to a corporation shall be valid unless such corporation shall be expressly authorized by its charter, or by statute, to take by devise.

The sole devisee of the real estate of decedent is “ The, American Society for the Prevention of Cruelty to Animals,” a corporation created by special act of the legislature, passed April 10, 1866. It is not disputed that the charter of said corporation, as it existed at the time of testator’s decease, contained no words expressly authorizing it to take real estate by devise, and the invalidity of the devise in question is so apparent as to require no discussion whatever, were it not that the counsel for the said society offered in evidence an act of the legislature, passed March 8, 1871, which is as follows:

Seo. 1. “The American Society for the Prevention of Cruelty to Animals, a corporation created by an act of the legislature of this State, passed April 10, 1866, is hereby authorized and empowered to take, hold, use and enjoin all the lands, tenements and hereditaments which were, by the last will of Louis Bonard, devised unto the said corporation, for the uses and purposes in said will expressed. And1 all the estate, claim, right, title and interest of the people of this State, of, in, and to, said lands, tenements and hereditaments, and every part thereof, are hereby released, granted, confirmed to and vested in said corporation.

Sec. 2. “The sixth section of an act entitled “An act to incorporate the American Society for the Prevention of Cruelty to Animals,” passed April 10, 1806, is hereby amended and shall read as follows :

Sec. 6. “ This corporation shall be capable of taking-, holding and enjoying any real property by virtue of any deed, or of any devise contained .in the last will of any person whomsoever, subject to the provisions of law relating to devises by last will. But this corporation shall not in its corporate capacity hold real estate, the yearly income derived from which shall exceed the sum of fifty thousand dollars.

Sec. 3. “Nothing in this act contained shall in any manner affect the right of any heir or. creditor of the late Louis Bonard.

Sec. 4. “ This act shall take effect immediately.”

The counsel for the society, in his argument, admitted the invalidity of the devise, and that the society did not claim such real estate under the will, but by virtue of the act last referred to ; and submitted to the court that it was proper for it to pass upon the effect of that enabling statute, in determining what disposition is to be made of the real estate here.

I do not deem it any part of my province to entertain the question of the effect of that special act.

If the lands, so in terms devised, escheated to the State, on account of the invalidity of the devise, and the non-existence of heirs capable of inheriting the real estate of testator, the escheat was effectual at the instant of testator’s decease, and no enabling act could be rendered lawfully retroactive, to invest the society with power to take any real estate by previous devise, the invalidity of which, at the time, either rendered the real estate inheritable at the instant of death by the heirs at law, or escheated to the State for want of such heirs.

The only question which it is proper for me. to decide as to such real estate is, not, who are now vested with the title, or may enforce the-rights of any party now lawfully claiming the same, whether it be the society by such enabling act, or any individuals, otherwise claiming ; but simply whether the devise was valid, and if not valid, it would follow as a consequence that the testator died intestate as to such real estate. To entertain jurisdiction of what disposition is to be made of the same real estate, as claimed under that act, would be equivalent to trying the title to the real estate as between the society, not as devisees, but as subsequent grantees of the State, and others who may, or might, claim as heirs at law.

I must, therefore, hold that the direct devise of the real estate to the society is invalid, and wholly inoperative by law.

III. As to the validity and effect of the bequest of •the personal property, which is as follows: [The learned surrogate here quoted the third paragraph of (A2rxx.se fourth of the will, which will be found on p. 180 above.]

It is claimed by counsel for two legatees under an alleged former will of testator, dated February 11,1871, (and which is now on file in this court, and propounded for probate, but not yet otherwise acted upon): That under its provisions there is an equitable conversion, at his decease, of the personal property of the testator into real estate for all the purposes of the instrument, and that he assumed to devise the entire property to an incorporated society, therein named :

That such incorporated society was not, at the time of the death of said Louis Bonard, or at any time prior thereto, authorized by law to take by devise :

That the disposition of the property in favor of said society was for uses and upon trusts, which were unauthorized by law, and in contravention of the statutes in such case made and provided:

That each disposition in said instrument which the testator assumed to make of his property of each kind and description was in contravention of the statutes prohibiting the suspension of the power of alienation of real estate, and of the absolute ownership of personal property, for periods not measured by lives in being, or by such lives and subsequent minorities:

That the revocation clause is invalid and inoperative, having been manifestly introduced only for the purpose of substituting, for his antecedent testamentary dispositions. which were mainly in favor of the same donee, the still more liberal provisions of this instrument, and, this object failing, by reason of the entire invalidity of the last intended disposition, the revocation clause falls with the devise to which it was subservient, and to effectuate which it was introduced :

And counsel for the consul-general of France, intervening for alleged foreign next of kin, claimed :

That the bequest, or so-called bequest, of personal property, is also null and void, and of no effect for the same reasons; said bequest being in fact and in law, by the terms of said instrument, a devise of real estate by reason of the directions in said instrument contained, to convert the said personalty into real estate :

That the several provisions in said pretended will, directing that the said property so pretended to be devised should be held for the uses and upon the trusts therein mentioned, and for undetermined and unlimited periods, are, and each of them is, void, as being contrary to the laws and statutes of the State of New York:

If the bequest above set forth stood alone, without any subsequent clauses referring to the personal property, there could be no doubt of its validity as an absolute gift: and this view, I believe, is not controverted by either of the contesting parties.

The uncertainty of its validity, however, arises from a subsequent clause, but not immediately folio wing'it; (one intervening), and all that follows such bequest in the will is in these words : [The learned surrogate here quoted the residue of the will beginning with the fourth paragraph of clause fourth which will bo found on p. 181, above.]

I therefore now proceed to consider the meaning and legal effect of the clause for the investment of money in real estate property.

In the first place I am satisfied that the clause under which the doctrine of equitable conversion into real estate is claimed, is not limited to the moneys or sums of money left by the testatator, but extends to, and embraces all moneys, whatsoever,, which may, under the will, arise from any portion of the personal property of the testator ; as the language is plain and explicit as' referring to moneys arising./rom any source by virtue of the will. These emphatic words leave no doubt of the testator's intention in respect to the character or meaning of the terms, “money or sums of money.”

The next, and, indeed, primary question concerning the effect of the clause for the investment of moneys in real estate property, is, whether, under it, there was an equitable conversion, at testator’s decease, of the said personal property into real estate ; the argument being, that, if there was such a conversion into real estate, the society, being incapable by law of taking real estate by devise, therefore the bequest under which it is claimed the direction so to convert or invest, was given, is’void and inoperative.

It is my judgment that there was not such an equitable conversion.

In the case of Wright v. Trustees Meth. E. Ch. (Hofman, 202), it is said: “If the purposes for which a sale of real estate is directed by will are illegal, there is no conversion.” “The real and personal property were blended into one fund by a direction that the former should be sold and the latter collected, and the whole applied to the payment of the debts and legacies, and the residue was given by the will to certain corporations : Held, that there was no conversion of the realty (as regards the surplus), the corporations being inca,pable of taking the land.”

So, applying the principle of that case to this will, it would certainly seem to follow that if the society in question, was incapable of taking land, in which the personalty was directed to be invested, 'then, as to the-legatee, there was .not an equitable conversion,—and the direction so to invest is inoperative and void ; and that the society, for whose use and benefit the investment was ordered to be made, would take the personalty as. such, under the direct bequest of the same, bv another clause of the will, in the same manner as if the inoperative subsequent direction had not been inserted; whether the same be regarded as creating an implied trust which can not lawfully be fulfilled, or as only a direction void in law, even if not invalid for repugnancy.

The legal estate of the personal property was not, by the will, in terms, vested in the executors, who were ordered so to invest it in real estate property. It was a naked direction, unless it can be maintained that the testator intended to invest them with the title to the personalty, or created an express trust of such personalty in the executors, or an implied trust, for the uses and purposes mentioned.

Aside from the fact that the clause in question, did not immediately follow the previous absolute bequest to the society, it is noticeable, and not immaterial, that the intervening clause related solely, to the real estate specifically devised and particularly before described ; and the clause relating to the investment of moneys in real estate property is one which commences with the words “I will and order” that all moneys or sums of money which may be so coming to the said society, from any source, &c., shall be invested, &c., thus referring to the absolute ownership before given; and I am now asked, so to construe the directions there given as to investment, that if the same can not be lawfully made in real estate property, for the sole, exclusive and perpetual use, benefit and enjoyment of the said society, that the preceding bequest, absolute in its terms, shall fall with such unlawful directions for investment.

Where a direction to invest the proceeds of land, in land, fails from illegality, they are still regarded as land, and pass to the heir and not to the residuary estate (Thorn v. Coles, 3 Edwards Ch., 330): and, on principle, it is the same as to personal property directed to be invested in land ; if the direction so to invest in land fails from illegality ; it is still regarded as personalty, passing to the next of kin, if not otherwise disposed of or bequeathed under other clauses of the will; and this qualification applies, equally, to the doctrine of the case last cited.

I am unable to discover that the clause for such investment has tha.t great importance ; or that any good reason can be assigned, that could have induced the testator to render the gift, first expressed as absolute, actually dependent upon the subsequent clause; for that would be directly in conflict with the general scope and theory of the will, and would, contrary to his intention, render him intestate as to the personalty, in case the last clause failed; neither can I perceive any good reason to suppose that he should, any the more, have intended to create a perpetual trust in real estate under the clause directing such investments in real estate, than that he so intended, as to the lands which he specifically devised directly to the society.

If the personal property had been directly bequeathed to the execntors, in trust, for the purpose of investment as aforesaid, and there had been no direct bequest to the society, I should not hesitate to pronounce the directions of such investment unlawful, and consequently that such bequest, in trust, would fall with it; as the doctrine of equitable conversion would then apply to it, and the validity of the trust would depend upon the capacity of the society to take real estate by devise ; because the law would not permit them to take indirectly, what they could not take directly ; and even if they could take by devise, the devise would be subject to the question of absolute restriction against alienation by the society, if the preceding clause, referring to the specific real estate devised, applied to the subject of such equitable conversion, which seems to have been claimed on the argument; but, it must be noticed that the restriction contained in the vrill against alienation of real estate, in its terms, refers only to “said real property,” meaning, evidently, the lands before particularly described.

Or, if the testator had employed any words in the clause directing such investment, to show, plainly, his intention that the preceding bequest was conditional upon the directions so given, there might be stronger reason for interpreting the directions as creating a trust; but the clause is without words necessarily importing a trust, or is not so clear, as implying one to be created or intended, that any forced construction should be given to it, which should, or might, defeat and subvert the absolute character of the general bequest of the society. There is certainly no trust created by express words, and none is clearly implied, and if neither is the case, the directions for investment in real estate property should be observed and performed, if they can lawfully be ; but if not, the main purpose and intentions of the testator as to the disposition of his personal property, before absolutely given to the society, should .stand, and courts should seek to effectuate the testator’s intentions, as they may be ascertained from the whole instrument, and not to defeat them. The intentions of a testator are, of course, to be ascertained from an examination of the entire paper, as he executes it; without reference to the validity or invalidity of any of its provisions, for he is not supposed, or presumed, to doubt that effect may be given to all if, contains. It is for the courts to determine whether to all, or to what part; but, so far as the construction of any part depends on testator’s intention, it is to be ascertained, and can only be, by a view of the whole instrument ;■ for that purpose, assuming validity of all its provisions. In this case, it is, in the first place, obvious that t.ho testator intended that none of his relatives near or remote, should share in his estate, real or personal, for no mention is made of any of them, or any provision direct or contingent for their benefit. Next, it is plain that ihe society referred to should be the only beneficiary of his estate} real and personal. No mention is made of any other, to take directly or indirectly, absolutely or contingently. His primary motive, and the pervading purpose of the instrument, throughout, was that the society named should have, use, and enjoy, for its corporate purposes, whatsoever property of any kind or description he should leave at his death. He so expressed himself in unequivocal words in the devise of the real estate, and the bequest of the personalty. He created no trust of the specific realty described, in his executors, for the benefit of the society ; he did not withhold from them the legal title to it, giving them only the equitable use; but he, in express terms, intrusted and devised it directly to them ; and the only peculiar lea hire of that devise, if, indeed, there is that to be said of it, in a legal sense, was, that the society should not alienate the real estate so specifically given to it; but this, if expressive of more than a desire, wish, or recommendation that the real estate should not be alienated, only confirms the singleness of his purpose, that the society should, for its corporate objects, be the sole recipient and possessor of his real estate, and if such was the unreserved or direct control which he intended to confer on the society, by the direct devise of the real estate of which he died seized, there is no presumption to be entertained that lie intended any the less to give the society the direct title to his personal estate and control over the same, and, therefore, no intention to fetter, or expose to defeat, the absolute character of the general bequest, except so far, if at all, as he, in express and unequivocal terms, by the subsequent clause, provided that the title to, or possession of, the personalty should be intercepted or withheld from the society by means of an express trust, or terms of prohibition or restriction against such actual possession of the personal estate ; and if the construction claimed by contestants, of the clause for the investment of the personalty into real estate property is sound in law, it is difficult to harmonize it with the absolute bequest before made, if such construction is that a trust in the executors was created for the perpetual benefit of the society; for if so, there is the incongruity or contradiction of an unqualified gift entitling the legatee to the ownership and possession of the personalty, and a subsequent clause creating a trust which, in effect, declares that the society shall have neither title nor possession, but only the use of its income : no such contradiction orín consistency of intention of a testator, can be presumed ■or entertained of a rational person, unless on the supposition that his mind was changed as he proceeded in ihe declaration of his will.

My conclusions on this portion of the case are : that the direct bequest of the personal estate to the society is valid as an absolute gift; that the subsequent clause under which the doubt has arisen, does not create a trust in perpetuity as real estate, by conversion ; that such last clause amounted only to a direction which was to be executed if i t could lawfully be, so as to vest the personalty converted into real estate, in the society ; that the prospect that the investment could lawfully be so made, does not seem to be the only or principal consideration that induced the testator to make the bequest ; that as the testator had not vested the real estate before specifically devised, in the executors, as trustees, for the benefit of the society, but devised it directly to the society, he, probably no less intended that the real estate in which he directed the personalty to be invested, should be taken by the executors in the name of the society, and not in their names as trustees, and therefore, as well as for other reasons above stated, the clause in question relating to investments does not defeat, but is, or may be fulfilled, in furtherance, and in execution, of the general scheme of the will, apparent from all other parts of it; that as the society could not thus take the bequest in the converted form of real estate, the clause became inoperative, and left the general bequest to take effect as an unconditional and independent gift; and 1 hat if an implied trust was created by the particular clause relating to investments in real estate, it was repugnant to the previous absolute gift, and therefore void ; or, if not so repugnant, but, as an implied trust., could not be lawfully executed, the implied trust falls, and still leaves the previous clause of bequest operative, as necessary to carry out the obvious general intention of the testator.

IY. As to the legal effect of the. revocation clause in the will in question.

It was urged by the counsel for the two legatees Walter Jones and William H. Bell, named in the other instrument, purporting to be a will of earlier date, that the revocation clause in the paper now under discussion, was introduced by testator, only for the purpose of substituting for his antecedent testamentary dispositions in favor of said society, the more liberal provisions of the last, that is to say, of the whole real and personal estate ; and that such object failing, by reason of the entire invalidity of the last instrument, the revocation clause falls with the devise and bequest to which it was subservient, and to effectuate which it was incorporated.

The point so taken by the counsel for the two legatees named in the prior instrument, was maintained on the argument, on account of its importance, in case, and assuming that, it should be determined that the bequest of the personal estate of the testator, as well as the devise, in the will of later date, was void, so that no property of either description would pass under it, and thus (excepting the appointment of executors), leave only the revocation clause standing for consideration. The question would, in that event, be quite a difficult one to decide ; but it is apparent that, from my determination of the validity of the bequest, it is unnecessary to investigate the authorities cited by the learned counsel for those legatees: as a later will bequeathing the testator’s entire personalty, absolutely, and in a form free and clear of all legacies to third persons, is, by the law of this State, ipso facto, a revocation of all former wills of or affecting the same personal estate ; and, consequently, by my decision of the bequest to the society as valid, the legacies in the previous instrument, given to Messrs. Jones and Bell, which could, thereunder, be enforced only against the personalty, are in legal effect annulled, wholly irrespective of the existence or legal effect of an express revocation clause, which, in this case, and with my view of the last bequest, only made express, what was, without it, a legal consequence.

Before concluding my opinion, it is proper to present some well established cardinal principles, and decisions in particular cases, which have aided and guided me in my determination, and may be usefully cited as applicable to the questions arising on the bequest before discussed.

Courts should rather strain, to prevent the divesting of an estate, though not to give an estate that never vested.

An implied intent, or a doubtful implication of different intent, that can not be lawfully effectuated, should give way to and be controlled by, clauses which are express and clear.

In Schettler Smith (41 N. Y. 329), Daniels, J., said: “The will, the construction and effect of which are in controversy, was clearly intended to make a full and final disposition of all the estate, real and personal. Its general tenor and meaning, as well as the particular provisions, devises and bequests made of the property, very clearly show that to have been the design and intent of the testator. And this circumstance must be prominently observed and considered in determining the effect of particular terms and phrases, which standing by themselves, may not be entirely consistent with the execution for that purpose (3 Burrows, 1626).

“And it was stated in terms of similar import by the ■chancellor, in deciding the case of Bond v. Bergh, (10 Paige, 140, 152). He there declares that the intent of the testator, so far as it Is consistent with the rules of law, must, govern in the construction of a will. When, therefore, the intention is apparent upon tho whole will, taken together, the court must give such a construction as to support the intent of the testator, ■even against strict grammatical rules. The observance of this principle is important in this case [Schettler], in view of the circumstances already referred to, that the will renders it entirely clear that the testator did not intend to die intestate as to any portion of his estate, and that intention should be maintained by the construction given to the different clauses in the will,, if that can practicably be done, consistently with the language he has made use of in framing them.”

In general, implication is admissible only in the absence of, and not to control, an express disposition (Rule 11, Jarman on Wills ; Dyer, 330 b.; 8 Rep. 94 ; 2 Vern., 60 ; IP. Wms., 54).

Words, in general, are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another can be collected (Jarman ; also 18 Ves , 466 ; 4 C. B. N. S., 791), and that, other can be ascertained, and they are in all cases to receive a construction which will give to every expression some effect, rather than one that will render any of the expressions inoperative (3 Ves., 450 ; 7 Id., 458 ; 7 East, 272 ; 2 B. & A., 441) ; and of the two modes of construction, that is to be preferred which will prevent a total intestacy (Cas. t. Talb., 161; 4 Ves.. 406; 2 Mer., 386).

In Parks v. Parks (9 Paige, 107), it is stated that the intention of a testator, as to the disposition of his property, by will, is not to be defeated where such intention can be ascertained upon a careful examination of the whole will, and that intention is not inconsistent with the rules of law.

Where a testators intention can not operate to its full extent, it shall take effect as far as possible (Rule 13, Jarman; Finch, 139; 4 Ves., 325; 13 Id., 486>.

It is a well settled principle of law, that where a will contains distinct and independent provisions devising different portions of the testator’s property, or distinct-estates or interests in the same portions of the property-, some of which provisions are consistent and others inconsistent with the rules of law, the former will be permitted to stand, although the latter are declared to be illegal and void, except where they are so dependent on each other that they can not be separated.

A testator is rather to be presumed to calculate on the dispositions in bis will taking effect, than the contrary (Rule 24, Jarman). It was said in Jenkins v. Hughes (8 H. L. Cas., 571; 6 Jur. N. S. 1043), that whether a general intent or a particular intent expressed in a will is to prevail, must depend on the context of the whole will, in construing which the words of a technical kind are not necessarily to receive a technical meaning.

Full effect should be given to the particular intent, as well as to the general intent of the testator, so far as his particular intent can be ascertained by the will, and as is consistent with the rules of law, and with his general intent; which general intent must control in a will (Parks v. Parks, 9 Paige, 107).

It is necessary to give full effect to special intentions of a testator, so far as they can be ascertained by the will and are consistent with the rules of law, as well as to his general intention as to the disposition of bis property after his death. The rule of construction in such cases is to give effect to the whole of the language of the testator in expressing his particular intent, provided it is not inconsistent with the general construction of the will (1 Roberts on Wills [3 Lond. Ed] 356; Dawes v. Swan, 4 Mass. 208).

There is no rule of more universal application, both here and in England, that the plain and unambiguous words of the will must prevail, and are not to be controlled or qualified by any conjectural or doubtful constructions growing out of the situation, circumstances or condition, either of the testator, his property, or his family (Bunner v. Storm, 1 Sandf. Ch., 357; Mann v. Mann, 14 Johns., 1; Parsons v. Winslow, 6 Mass., 175 ; Dawes v. Swan, 4 Mass., 208).

1 here is, perhaps, no rule of construction of more universal application to wills, or which oftener requires tobe acted upon, than that every portion of the instrument must be made to have its just operation, unless there arises some invincible repugnance, or else some portion is absolutely unintelligible (Norris v. Beyea, 13 N. Y, 273, 283).

In Chrystie v. Phyfe (19 N. Y., 344), Strong, J., states the leading doctrines applicable to the construction of wills in a very clear and forcible manner; as that the language used shall receive its ordinary interpretation, except where some other is necessarily or clearly indicated; and where words are equivocal, that meaning shall be adopted which will tend to preserve consistency, in preference to one which will create inconsistency, and, if possible, some effect shall be given to each distinct provision of the will, rather than it should be annihilated (1 Redfield on Wills, 432 ; Hone v. Van Schaick, 3 N. Y., 538; 3 Barb. Ch., 488 ; 3 Brad. Surr., 230; 16 Barb., 412; 13 N. Y, 98).

In 35 N. Y., 162, the court affirms the rule, that it is proper to incline towards such a view as will render the instrument legal and operative, rather than the opposite.

If the words of the will be such that they may be construed in two different senses, one of which would render the disposition made of the property illegal and void, and the other would render it valid, the court should give that construction to the language that will make the disposition of the property effectual (Butler v. Butler, 3 Barb. Ch., 310; Mason v. Jones, 2 Barb., 230).

A clearly expressed intention in one portion of the will, is not to yield to a doubtful construction in any other portion of the instrument (Corrigan v. Kiernan, 1 Brad. Surr. 208 ; Brown v. Lyon, 6 N. Y., 419).

When the testator’s general or primary intention appears, the court, in order to give it effect, would sacrifice to it a particular or secondary intention inconsistent with it (Lovett v. Kingsland, 44 Barb., 567, and cases cited).

In Kane v. Astor (5 Sandf., 467), it was held, that in construing a will, the court must give full effect to every part of it, if lawful, and to single words as well as to sentences and paragraphs. But it is a permanent principle that the court shall carry out the general intent of the testator ; and where a particular word or sentence is repugnant to the general intent and design of the whole will, or tends to render it incongruous or insensible, such word or sentence must give way, rather than sacrifice the whole scheme of disposition disclosed by the general tenor of the instrument.

It is true, as a general rule, that where a gift or trust is void by statute, as a disposition in favor of persons or objects prohibited from taking, or in a manner forbidden, as in violation of statute, or where the gift contravenes some policy of the law, as tending to a perpetuity, a trust to the extent of the estate given, will will result to the donor or his heirs, or legal representatives, but only so, if it is not otherwise disposed of.

In Webb v. Wools, (2 Sim. N. S., 267), Kendersley, V. G., said, “Where the later words of a sentence in a will go to cut down an absolute gift, contained in the first part of a sentence and are inconsistent with such gift, the court will, if it can, give effect to the absolute gift.”

If two parts or provisions of a will are repugnant, so that both can not stand, the last will prevail, unless other parts of the will forbid it (Bradstreet v. Clark, 12 Wend., 602; Covenhoven v. Shuler, 2 Paige, 122 ; Mason v. Jones, 2 Barb., 229; Parks v. Parks, 9 Paige, 107 ; Leggett v. Perkins, 2 Comstock, 207, 306).

A subsequent clause, apparently irreconcilable with precedent provisions, will be construed in connection with them, and may be rejected, if repugnant to the intention of the testator as derived from the whole will (Bradley v. Amidon, 10 Paige, 235).

It sometimes happens in wills that there are clauses inconsistent with each other, in which case both can not take effect. In such a case it becomes the duty of the court to select one ox the other. In analogy to the fact that the last will of a testator is to prevail in preference to the earlier one, the courts have adopted from necessity a similar rule, and treated the subsequent words in the will as indicating a subsequent intention unless, indeed, there be other expressions in the will which malee it apparent that the first should ialce effect (Sims v. Doughty, 5 Vesey, Jr., 247; Constantine v. Constantine, 6 Id., 102 ; Parks v. Parks, 9 Paige, 124 Dawes v. Swan, 4 Mass., 215; Sweet v: Chase, 2 Comstock, 73, per Ruggles, J).

A bequest to a man, generally, of money or personal property is an absolute legacy, and in such a case a subsequent direction to the executors to put the money at interest for the support of the legatee does not in any manner revoke or qualify the gift. It merely relates to the investment, and being inconsistent with the absolute title before given to the legatee, it is null and void. Fo valid qualification can be attached to a full title to personal property (Dorland v. Dorland, 2 Barb.» 65).

In Beck v. McGrill, 9 Barb., 35, the devise was to a married woman for life, “ subject to the powers and limitations therein expressed,” followed by an appointment of her husband as trustee “to take possession of the property so devised, receive the rents and apply the same to her use during her life, as she should direct; ” and by a codicil, other property was devised to her for life, “ subject to the same restrictions, limitations and powers in trust specified in my will.” Held, that the-power being inconsistent with the devise was void, and that the devisee took an unshackled estate for life.

When an absolute interest is given to the legatee, a devise over is void for repugnancy (11 Wend., 275).

No precise form of words is necessary to create a ■condition in wills. But whenever the intention of the testator is clearly manifested that the legacy should depend on a condition, and the condition is not repugnant to the estate or contrary to the rules of law, the intention will be carried into effect (Shep. Touch., 433; Pink v. Thuisey, 2 Mad., 157).

If a legacy is given upon the performance of a condition subsequent, which is illegal, the rule at common law, and by the civil law adopted in courts of equity, is the same, and the condition is void and the legacy is absolute, freed from the condition and is as if no condition had been annexed to it. It is upon this principle that conditions and qualifications inconsistent with and repugno/nt to the gift, are wholly void and are to be ■rejected. This rule is well illustrated by a case decided by Lord Alvawley, Master of the Rolls. Lord A. said : “I find it laid down as a rule, long ago established, that where there is a gift with a condition inconsistent with and repugnant to such gift, the condition is wholly void. A condition that tenant in fee shall not aliene is repugnant, and there are many other cases of the same sort. In all these cases the gift stands, and the condition or exception is rejected” (Bradley v. Peixot, 3 Vesey, 324; Schermerhorny. Negus, 1 Denio, 448).

If a good bequest is made to a legatee, subject to an illegal or void direction to accumulate, as where such direction is independently engrafted upon the bequest, and can be stricken out without destroying the substantial form of the gift, the gift may be held to be good, but the direction to accumulate void (Haxton v. Corse, 2 Barb. Ch., 506 ; Craig v. Craig, 3 Id., 76 ; Martin v. Maugham, 14 Sim., 230 ; Williams v. Williams, 4 Selden, 525 ; Phelps v. Pond, 23 N. Y., 69 ; Kilpatrick v. Johnson, 15 Id., 322; Hanley v. James, 5 Paige, 318; Philadelphia v. Girard, 45 Pa St., 1).

In Darling v. Rogers (22 Wend., 483), ifc was settled by the court of errors that where real estate is awarded upon two or more trusts, some of which are legal and the others are void or unauthorized by law, the title passes to the trustee, so far as is necessary for the purposes of the authorized trusts, notwithstanding the provision of the revised statutes, which declares that where an express trust shall be created for any purpose not authorized by those statutes, no estate shall vest in the trustee.

Executors take possession of the personalty of the testator, as trustees in law for the legatees thereof, if any are named in the will; and if the direction in question under this testator’s will, as to investment of personalty in real estate, constitutes a trust express orimplied, and is void, it still leaves the personalty in their hands, as trustees, for the lawful purpose of delivery, at the proper time, to the society, as legatee thereof under the general bequest of the will.

These views comprise all that need be said on the various points submitted by counsel upon the questions of the validity of the devise and bequest arising in the case, and a decree will be entered accordingly, as well as for the admission to probate of the paper so propounded as the last will of deceased, bearing date February 14, 1871, and adjudging that the instrument of earlier date, offered for probate, was revoked and annulled by the will so admitted.

Decree accordingly. 
      
       JSTo appeal was taken.
     
      
       There are three methods of presenting the testimony of a medical ■expert in such a case. 1. If the witness was the medical attendant ol the person whose capacity is in question, or has adequately examined him, he may testify to his opinion as to such person's capacity, especially if his opinion is given in connection with his statement of the facts of the person’s condition. For recent illustrations of this method, see People v. Montgomery, (13 Abb. Pr. N. S., 207); Macfarland’s Trial, (8 Id., 57). 2. Amedical expert who has heard all the testimony adduced upon the trial hearing upon the mental condition, may give his opinion on the question of what the facts proved or claimed to be proved, indicate as to the mental condition (see People v. Lake, 12 N. Y. (2 Kern.) 358; affirming 1 Park. Cr., 495). 3. A medical expert, may be asked what a supposed state of facts put to him hypothetically, but corresponding in details to the facts already in evidence on the trial, would indicate as to the mental condition. Ib, The case in the text is an instance of the latter method.
     