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Opinion of the Court, per DENIO, Ch. J.

committed to persons employed as agents by him, and under his directions. It appears that about the year 1856, or some what earlier, he commenced to have apprehensions of his wife and his relatives, and suspected them of a design to break up his family-exhibiting on those subjects a good deal of excitement, and talking about them constantly. According to the testimony of Mr. Van Antwerp, a lawyer, who was a good deal employed by him in his legal business, and was, with his partner, for several years his only counsel, this disposition of mind continued to increase, getting, as he expressed it, worse and worse, and more excited, all the time;'and he was constantly making new allegations against several persons of a conspiracy to cause his death. In the suminer of 1859, he was arrested by policemen, by order of the mayor, charged with threatening to assault his wife; and he gave bail to keep the peace for six months, Mr. Van Antwerp being his surety. About this time his wife left his house, alleging that he had committed violence upon her person ; and she soon afterwards commenced an action for a separation, on the allegation of threats of cruel treatment, which made it, as she alleged, unsafe for her to live with him. They lived separate ever afterwards. She appears to have had no kindred of her own blood, and no family connections, except the relations of her husband. Two of his nephews, John R. Hopper and Captain William L. Wiley, took part with her, and gave her some assistance in the legal proceedings; and the sympathy of all the others seems to have been in the same direction. This caused a high state of indignation on his part; and from this time until his death he believed, or affected to believe, that they were conspiring together, and with other persons; to destroy his domestic happiness, and in some secret manner to take his life.

The question which arises upon the evidence is this: Whether his conduct and declarations, from the commencement of the suit for a separation, embracing, perhaps, a year or two prior to that period, down to his decease, were simply the manifestations of an excitable, coarse, ill-regulated and suspicious mind, made more intense by his habits of intem

Opinion of the Court, per DENIO, Ch. J.

perance, or were the consequences, on the other hand, of an insane delusion, which led him to regard as certain truths, and actually to believe in the existence, on the part of his wife and his relatives, of conduct and intentions substantially such as he imputed to them. I am perfectly satisfied that there was no foundation in fact for the gross imputations upon his wife, or the charge against his relatives, all or any of them, of a design upon his life, or an intention to do him any bodily injury; and that the idea of a conspiracy to injure him, otherwise than by promoting the suit which his wife was prosecuting, was either feigned or purely imaginary. If feigned, it is not enough to defeat the will. If he did not really believe what he alleged to be their criminal conduct and intentions --- if he uttered the injurious imputations by way of personal abuse, in order to gratify a depraved and malicious disposition, or for the purpose of defaming or otherwise injuring them in the estimation of their acquaintances and the community, any or all of these dispositions and motives, though most unworthy and reprehensible, would fall short of that degree of mental perversion which would enable the courts to pronounce him non compos mentis and incapable of disposing of his property by will. On questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation. These qualities of mind may exist, even in a high degree, and yet, so far as regards the view which the law takes of the case, the subject may be sane and competent to perform a legal act, and be held responsible for crime. Setting aside cases of dementia, or loss of mind and intellect, the true test of insanity is mental delusion. 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 their existence, he is, so far as they are concerned, under a morbid delusion; and delusion in that sense is insanity. 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. (Dew v. Clark, 3 Add.

Opinion of the Court, per Denio, Ch. J.

Ecc. R., 79.) If the deceased in the present case was unconsciously laboring under a delusion, as thus defined, in respect to his wife and his family connections, who would naturally have been the objects of his testamentary bounty when he executed his will or when he dictated it (if he did dictate it), and the court can see that its dispository provisions were or might have been caused or affected by the delusion, the instrument is not his will, and cannot be supported as such in a court of justice. The conduct and designs which he imputed to his wife and relations were such as, upon the assumption of their existence, should have justly excluded them from all share in the succession to his estate.

I have examined with great attention the mass of evidence in this case, not with a view of determining whether the imputations were true, for of that, as I have said, there is no evidence or probability, but for the purpose of satisfying myself whether the deceased really believed them, or threw them out for purposes of abuse, and to gratify revengeful feelings arising out of the prosecution of the suit for a separation or otherwise ; and I will premise that I have not, upon this branch of the case, relied upon any part of the testimony in respect to which the evidence is contradictory, or upon the uncorroborated deposition of any witness against whom there seems any just ground of imputing partiality or interested motives.

Mr. Van Antwerp, before referred to, is wholly unconnected with the parties to the controversy. He had been the attorney and legal adviser of the deceased from the year 1846 down to April, 1860, about a year and a half before he died. He appears to be a gentleman of observation and good sense; and his profession would lead him to speak with more precision and intelligence than several of the witnesses who were examined. According to his testimony, the excitement of the deceased respecting his domestic affairs appears to have commenced about the beginning of 1856, and during the ensuing three years and a half the witness thinks he conversed with him on these subjects as many as an hundred and fifty times, he continually making new allegations of



Opinion of the Court, per Denio, Ch. J.

circumstances and of the acts of parties, confirmatory, in his opinion, of his suspicions. At first it seems that the allegations were that the suspected parties were interfering with his domestic affairs, and attempting to break up his family. In the year 1858 he began to entertain the idea that persons were attempting or conspiring to take his life. On one occasion he confidentially informed the witness that the suspected parties had chartered a steamboat on the pretense of going on a fishing expedition, and had induced him to accompany them, and that after he got on board he discovered that their design was to make way with him for the purpose of getting his property. On another occasion, about the same time, he sought a private interview with the witness in the back room of his office, and informed him that there were parties who had procured a carriage and some men, and had driven into the neighborhood of his house, with a design to seize and take him to the lunatic asylum. He said he had got the information from an individual whom he refused to name, because, as he said, he feared that if he did they would kill him. He declared that he would not venture to go home that afternoon, but would go over to Hoboken and return in the night. There is no evidence or reason to believe that any such design was entertained by any person. On the occasion of his being brought before the mayor on a complaint of his wife, he was very anxious that Mr. Van Antwerp should cause the proceedings to be published in the newspapers, for the reason, as he stated, that the suspected parties would get frightened, and he would thus “get rid of the whole tribe.” After he had been sued by his wife for a separation, he insisted that a suit should be commenced by him against her on the ground of adultery on her part. On being required to name the other party to the criminal intercourse, he mentioned the names of several prominent clergymen of the Reformed Dutch Church, she being an attendant of one of these churches, and said they were around his house all the time. On the witness declining to commence à suit, he proposed to him to procure his wife to confess her guilt, and agreed to pay him for that service whatever he had a

Opinion of the Court, per DENIO, Ch. J.

mind to ask, and said he would give his wife as much money as she wanted to enable her to live like a lady all the remainder of her life.

Mr. James, the partner of the last mentioned witness, and who seems well qualified to give trustworthy evidence, deposed to several conversations between the deceased and himself, independently of those mentioned by Mr. Van Antwerp.


the deceased would often come to his office and mention having met individuals in the street, who stopped him and spoke to him; and he said he knew they had a design in doing it, which was to entrap him in regard to his wife's suit. This witness says that the deceased was impressed with a notion, which he never got over, that there was a conspiracy on the part of his wife and several clergymen of the city of New York to break up his marital connection with her; and that these clergymen were in the constant habit of illicit intercourse with her, and that she had been diseased by one or more of them, and had communicated the disorder to him. The witness endeavored to convince him of the absurdity of his accusation, by stating that the clergymen named were men advanced in years, and of high character, and that his wife was also old. But his efforts were without success. The deceased appears to have taken up the idea, pending the suit for a separation, that there was an apartment in Broadway, distinguished by a sign on which a human eye was painted, which was visited by his wife for the purpose of illicit intercourse with the persons whom he had mentioned. When the examination of witnesses in the suit for a separation took place, he insisted that a Miss Warner, who had lived in the family, and who had been examined on behalf of his wife, should be cross-examined about that place which he said he had seen her enter. It does not appear whether the cross-examination embraced that topic, but it was foreign to the issue and probably was not pursued. He constantly expressed to this witness his idea that there was a conspiracy among his · friends and family relatives to kill him or get him into prison.

It would be tedious to refer particularly even to the prin

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