Paterson Railway Co. v. Grundy. connection with the context. But, is the whole section, on that account, to be disregarded? I think not. The provision of the section requiring the consent of the commission is perfectly clear. There is no doubt, from the proviso, that it is not to apply to the repair of wires now in use, or to wires used for fire or police purposes. Thus far, the meaning of the legislature is distinct. It appears they meant to except some other wires, but, for want of apt words, they have failed to indicate what. It cannot be presumed it was a class which would embrace the complainant; but, as we cannot, from the words, give it a satisfactory application, it is to be disregarded. The rest of the section is not affected by such course. The complainant's right to an injunction, in my opinion, would be complete but for the act of 1892. But if it is even doubtful whether the act is or is not constitutional, or whether it applies to the complainant, it is fatal to this application, for this court will not grant a preliminary injunction on a questionable point of the constitutionality of a statute, or its applicability to a party. Inhabitants of Greenville v. Seymour, 7 C. E. Gr. 458; Bonaparte v. Camden and Amboy R. R. Co., Bald. 205; Hackensack Improvement Co. v. New Jersey Midland Ry. Co., 7 C. E. Gr. 94; Morris and Essex R. R. Co. v. Prudden, 5 C. E. Gr. 530; Black v. Camden and Amboy R. R. Co., 7 C. E. Gr. 130, 131. The order to show cause must be discharged. CASES ADJUDGED IN THE PREROGATIVE COURT OF THE STATE OF NEW JERSEY. FEBRUARY TERM, 1893. ALEXANDER T. MCGILL, ORDINARY. ABRAHAM V. VAN FLEET, VICE-ORDINARY. HENRY A. FLUCK and JACOB R. WERT, executors of V. RUNKLE REA et al. A man may habitually indulge in intoxicants and yet possess testamentary capacity, if at the very time of the execution of the will he was able to and did clearly comprehend the nature and effect of the business in which he was engaged. On appeal from a decree of the Hunterdon county orphans court. Fluck v. Rea. Mr. Richard S. Kuhl and Mr. Alvah A. Clark, for the appellants. Mr. J. Newton Voorhees and Mr. George H. Large, for the respondents. THE ORDINARY. The appeal questions the propriety of a decree of the orphans court of Hunterdon county made on the 13th of January, 1893, refusing probate of a paper purporting to be the last will and testament of George A. Rea, deceased, and allowing sundry counsel fees. The general ground of contest is that George A. Rea lacked testamentary capacity. Mr. Rea died on the 6th of June, 1892, at Flemington, in this state, aged seventy-two years. He was a childless widower. His next of kin are the children of three deceased sisters and two deceased brothers. During his life he kept a boot and shoe store in Flemington, and was extensively engaged in farming and also in buying and selling hides of animals. He was the owner of several farms, which contain, in the aggregate, more than two thousand acres of land, and also of a large brick building in the business part of Flemington, and also of personal property, estimated to be worth between $35,000 and $40,000. His entire estate is worth about $160,000. In May, 1891, he became intemperate in the use of intoxicating liquors, so that during the last six months of his life, for a large portion of the time, he was more or less under their influence. The will in question was executed on the 12th of December, 1891, about six months before his death. The insistment now is, that, at that time, Mr. Rea was so intoxicated that he did not comprehend the nature and effect of the business in which he was engaged. The rule which controls this case is stated by Chief-Justice Denio in Peck v. Cary, 27 N. Y. 9, 23, in this language: Fluck v. Rea. "It is not the law that a dissipated man cannot make a contract or execute a will, nor that one who is in the habit of excessive indulgence in strong drink must be wholly free from its influence when performing such acts. If fixed mental disease has supervened upon intemperate habits, the man is incompetent and irresponsible for his acts. If he is so excited by present intoxication as not to be master of himself, his legal acts are void, though he may be responsible for his crimes." I adopted this statement of the law in Bannister v. Jackson, 18 Stew. Eq. 702, which case was affirmod upon appeal. 1 Dick. Ch. Rep. 593. I do not find any evidence in the case to warrant a claim that a fixed mental disease had fastened upon Mr. Rea. He appears to have been a man of unusual business ability, and, up to the very time of his death, when sober, to have possessed ample capacity to efficiently manage all his business affairs. The question, then, is narrowed down to the inquiry whether, in fact, at the very time of the execution of the disputed paper, Mr. Rea was so intoxicated that he did not comprehend the nature and effect of the transaction in which he engaged. As no fixed mental disease was proved to have existed prior to the making of the will, the burden was upon the contestants to clearly and satisfactorily show that when the instrument was executed, Mr. Rea was so intoxicated that he did not intelligently appreciate that which he was doing. The proofs to which the contestants resort are made by the testimony of three employes of Mr. Rea, and a grand-nephew, who is the son of one of the caveatrices, and Mr. John R. Foster, who mentions a single instance of intoxication. Two of the employes are so ignorant that they can neither read nor write. The first of them is William T. Carkhuff. I find this witness to be so reckless and extravagant in many of his expressions that, in view of the testimony of other witnesses, to whom I hereafter refer, I can place but little reliance in his testimony. For instance, he swears at the outstart, speaking of Mr. Rea, "I don't think he drew a sober breath from May, 1891, to his death, and certainly not for the last six months before his death." Fluck. Rea. Yet, later, he speaks of instructions that he received from Mr. Rea which indicate that Mr. Rea was unquestionably in full possession of his faculties at times. For instance, quoting from the witness "He would say 'that bottle sits up there;' he would hand me a silver dollar and say 'go get that bottle filled uptown;' he would tell me to bring it to the back door and set it up there on the shelf, in case anybody was in; if no one was in he would come to the back part of the store and take the bottle himself and take care of it." It is very evident that at the giving of such instructions Mr. Rea was in possession of his senses and acute enough to conceal his secret habit His condition at such times is at variance with the impression that Mr. Carkhuff evidently sought to convey by his statement that Mr. Rea never drew a sober breath. Of the same character is the testimony of Mrs. Meyers, who was Mr. Rea's housekeeper. She testifies: "It was pretty much the same all the time; after October 1st, 1891, I never could say that I saw him sober afterwards." Yet Mrs. Meyers, when speaking of the provision of food for the household, said of Mr. Rea: "Sometimes he would get it, and sometimes he would be so drunk that he would forget it," indicating that at times Mr. Rea was sober, or, at least, sober enough to intelligently transact business. The third witness had less opportunity to observe Mr. Rea, and is more guarded in his statements. He sums his testimony up with the conclusion that Mr. Rea was not drunk all the time, "but had liquor in him all the time." John R. Foster testifies that he had a business interview with Mr. Rea on the 10th of December, 1891, two days before the will was executedthat is, Thursday, the will being executed on Saturday--and that Mr. Rea was drunk then. There is no question as to the truth of this testimony; the witnesses upon the part of the proponents also testify to Mr. Rea's intoxication upon that day. The remaining witness for the contestants is David S. Servis, the son of one of the contestants. Servis speaks of a business transaction he had with Mr. Rea on the 24th of January, 1892. He |