
    Stewart’s Executors v. Lispenard and others ; 26 Wend. 255, 326.
    
      Capacity of Imbecile Testatrix to make a Valid Will.
    
    The questions decided in this case upon the will of Alice Lispenard, depend so much upon matters of fact, that we should hardly be justified in stating them at large ; the only principle of law asserted by the decision being one that can hardly be called tangible, and so indefinite and evanescent, indeed, as to baffle any thing like exactness in its terms, or certainty in its application.
   The Court of Errors, however, upon the strength of it, reversed the decision of three subordinate tribunals—the Surrogate, the Circuit Judge of the first circuit, and of the Chancellor—who all concurred that the evidence in the case established a clear case of mental incapacity existing from childhood, so as to incapacitate her from making a will, or understanding the nature of it; still less of comprehending its dispositions.

The Court of Errors seems to have held, that mere imbecility of mind, be it ever so near the boundaries of idiocy, is no disability to making a will, if the party have been born so, and has not fallen into such a state of mind from sickness, age, grief, or other accident, so as to wholly lose his understanding ; and will not incapacitate persons of full age, who are not insane or idiots, in the strict sense of the legal terms. Such imbeciles a nativitate, may, under certain circumstances, make a will, if it be a proper will in itself, and in favor of a suitable devisee, and such an one as a sane person might possibly have made.

As to the question of fact in the case, upon which the Court of Errors passed, they may have been right: but if so, it would seem to have been well maintained by Mr. Justice Bronson that the proper decree was to reverse the decrees of the courts below, and to award a feigned issue. But the court, by a vote of 11 to 8, refused; and held that the decree should be of reversal, and ordering the will to be admitted to probate, &c., and declaring the testatrix at the time of making' her will, to have been of sound mind and memory, and capable of disposing of her property by will; which was accordingly done by a vote of 12 to 5.

£3=’ In the case of Blanchard v. Nestle, 3 Denio, 37, this decision is adopted by the Supreme Court in its full extent; and the decision in that case is expressly put on the same ground, with some expression of approbation by Mr. Justice Jewett, who delivered the opinion of the court.  