67

Where the local practice is such that the finding upon an inquisition of lunacy is merely that the subject was insane on and after a given date,—as, the date of filing the petition, there is no presumption of law as to his sanity or insanity prior to that date; but a contract made with him before the institution of the proceedings may be avoided on evidence that he was actually insane when it was made." And where an inquisition in lunacy is shown by the record to have been set aside, a title thereafter given to real estate by the lunatic is valid, although the inquisition is subsequently reinstated. There are also decisions to the effect that, although a person may have been adjudged insane, yet if no conservator or guardian has been appointed, and he is in the management of his affairs, and there is nothing about his appearance or manner to indicate his incapacity to contract, if he purchases an article at a fair and reasonable price, which is necessary or useful to him in his business, the seller having no notice of his having been adjudged insane, he will be liable to pay the price agreed on. As to the effect of a subsequent restoration to reason, the rule in the code states (above referred to) is that the incapacity to contract continues "until his restoration is judicially determined." But elsewhere a conveyance made by one formerly adjudged a lunatic, but who is in fact sane when it is made, is valid, although no adjudication has been made that he had been restored to his right mind. And if, at the time of making a deed of his property, one under guardianship as a lunatic was in fact of sound mind, and the guardianship had been practically abandoned, and the contract was fair, the deed will be held valid, although the guardian had not been formally discharged.70

68

66 Stockmeyer v. Tobin, 139 U. S. 176, 11 Sup. Ct. 504, 35 L. Ed. 123. But see Beals v. See, 10 Pa. 56, 49 Am. Dec. 573.

67 Mitchell v. Spaulding, 206 Pa. 220, 55 Atl. 968.

And see

68 McCormick v. Littler, 85 Ill. 62, 28 Am. Rep. 610. Wray v. Chandler, 64 Ind. 146; Copenrath v. Kienby, 83 Ind. 18; Dodds v. Wilson, 3 Brev. (S. C.) 389; Sims v. McLure, 8 Rich. Eq. (S. C.) 286, 70 Am. Dec. 196.

69 Lower v. Schumacher, 61 Kan. 625, 60 Pac. 538. 70 Thorpe v. Hanscom, 64 Minn. 201, 66 N. W. 1.

§ 260. Time of Making Contract or Conveyance.-To render a contract voidable on account of the mental incapacity of one of the parties to it, it is not enough to show that such party was at times, from whatever cause, lacking in sufficient sanity to understand what he was doing, but the evidence of his defective intelligence must relate to the immediate time of making the contract."1 A deed of real estate executed by one who was, at the time, suffering from a temporary mental aberration, will be set aside, though it is shown that he was sane before and afterwards. As to conveyances of real estate, it is generally held that the date of the execution of the deed is the material point of time to be considered upon an inquiry as to the grantor's mental capacity," though, in a case in New York, where there was no proof of delivery of a deed at the time of its execution, but a presumption of delivery from the fact of its being recorded two years afterwards, it was held that the issue of the grantor's mental competency, as relating to delivery, was to be determined as of the time of the recording." It should be observed that the subsequent insanity of a party does not annul his contract made when sane, except in cases where the contract remains entirely executory, in which event it may be revoked by the supervening insanity." But if one, when sane, makes an agreement upon sufficient consideration to execute a mortgage, which is executed accordingly, but at a time when he is insane, equity may in a proper case apply the rule that it may treat that as done which ought to have been done, and not allow the mortgage to be avoided by the plea of insanity at the time of its execution." So, deeds executed by

71 T. M. Gilmore & Co. v. W. B. Samuels & Co., 135 Ky. 706, 123 S. W. 271, 21 Ann. Cas. 611; Armstrong v. Burt (Tex. Civ. App.) 138 S. W. 172.

72 Fisher v. Fisher, 12 Neb. 416, 11 N. W. 864.

73 Delaplain v. Grubb, 44 W. Va. 612, 30 S. E. 201, 67 Am. St. Rep. 788; Farnsworth v. Noffsinger, 46 W. Va. 410, 33 S. E. 246; Woodville v. Woodville, 63 W. Va. 286, 60 S. E. 140.

74 Ford v. Gale, 155 App. Div. 675, 140 N. Y. Supp. 54L

75 Sands v. Potter, 59 Ill. App. 206.

76 Beach v. First M. E. Church, 96 Ill. 177.

77 Bevin v. Powell, 11 Mo. App. 216.

a father to his sons, accomplishing the same result which was achieved by his executing a will six years before, when no doubt existed as to his mental condition, will not be set aside for lack of mental capacity of the grantor following an attack of paralysis.78

§ 261. Deed or Contract Made in Lucid Interval.-A deed or other conveyance or a contract made by an insane person, but during a lucid interval, is valid and enforceable. A "lucid interval," as the term is used in medical jurisprudence, is an interval occurring in the mental life of an insane person during which he is completely restored to the use of his reason, or so far restored that he has sufficient intelligence, judgment, and will to enter into contractual relations, or perform other legal acts, without disqualification by reason of his disease. But the term means something more than a mere lull in the progress of the mental disease, an apparent tranquillity or seeming repose, or a mere remission or temporary abatement of the external manifestations of insanity or of the excited or violent symptoms of the disease. It must be in the nature of a temporary cure, an intermission so clearly marked as perfectly to resemble a return of mental health, a restoration of the faculties of the mind, temporary, it is true, and not necessarily complete, but such as to enable the patient without doubt to comprehend and perform a legal act with such a measure of reason, memory, and judgment as is normal to him.80 For instance, one whose mind is so permanently impaired that he cannot act rationally can make no valid contract, and it is immaterial that at the precise time he does

78 Taphorn v. Taphorn, 32 Ohio Cir. Ct. R. 96.

79 Beasley v. Beasley, 180 Ill. 163, 54 N. E. 187; Stitzel v. Farley, 148 Ill. App. 635; McCormick v. Littler, 85 Ill. 62, 28 Am. Rep. 610; Lilly v. Waggoner, 27 Ill. 395; Berkey v. Rensberger, 49 Ind. App. 226, 96 N. E. 32; Ramsdell v. Ramsdell, 128 Mich. 110, 87 N. W. 81; In re Gangwere's Estate, 14 Pa. 417, 53 Am. Dec. 554; Porter v. Brooks (Tex. Civ. App.) 159 S. W. 192; Beverage's Committee v. Ralston, 98 Va. 625, 37 S. E. 283; McPeck's Heirs v. Graham's Heirs, 56 W. Va. 200, 49 S. E. 125.

80 Frazer v. Frazer, 2 Del. Ch. 260; Godden v. Burke's Ex'rs, 35 La. Ann. 160; Ricketts v. Joliff, 62 Miss. 440; Ekin's Heirs v. Me Cracken, 11 Phila. (Pa.) 534.

BLACK RESC.-44

not show any aberration.81 Lucid intervals, in the legal sense, are therefore not to be looked for in any of the forms of permanent and complete insanity. There is, for instance, a type which is called "maniacal-depressive insanity," and which is characterized by alternating periods of high maniacal excitement and of depressed and stuprous conditions in the nature of or resembling melancholia, often recurring as a series or cycle of isolated attacks, with more or less complete restoration to health in the intervals. These intervals might perhaps be "lucid," but it would require strong evidence to show that the afflicted person, at such a time, possessed sufficient understanding and judgment to satisfy the requirements of the law. On the other hand, it has been said that one affected by a progressive mental disorder, such as softening of the brain, may well have periods of complete comprehension and understanding of transactions, especially where such transactions are not of a complicated character.82 And this is true of various forms of "recurrent insanity," where the mental disorder returns from time to time, but is not continuous, or where the attacks are fitful, exceptional, or occasional.88 So again, while the paroxysms of epilepsy are often accompanied by complete mental alienation, amounting in some cases to acute mania, yet, at least in the earlier stages of the disease, there is usually a complete restoration to reason in the intervals between the attacks.84 An illustrative case is found in Virginia, where one who had been discharged from an insane asylum as "improved," and who thereafter between insane intervals, lasting from two days to two weeks, was quiet and inoffensive, and worked with efficiency, read, voted, and was regarded as having sufficient mental capacity to convey by deed, was held to be capable during his lucid intervals of making a binding contract.85

81 Searles v. Northwestern Mut. Life Ins. Co., 148 Iowa, 65, 126 N. W. 801, 29 L. R. A. (N. S.) 405.

82 Critchfield v. Easterday, 26 App. D. C. 89.

83 Leache v. State, 22 Tex. App. 279, 3 S. W. 538, 58 Am. Rep. 638. 84 Aurentz v. Anderson, 3 Pittsb. (Pa.) 310; Brown v. Riggen, 94 Ill. 560.

85 Reed v. Reed, 108 Va. 790, 62 S. E. 792.

§ 262. Test of Mental Capacity.-No particular degree of mental capacity is essential to enable one to execute a valid deed or contract, and no arbitrary standard is or could be established. No very high measure of intelligence or acumen is required, and on the other hand, a person may be mentally incompetent for business and legal purposes although he is not absolutely an idiot nor totally devoid of reason. The test generally agreed upon is this: A deed or contract cannot be set aside on the ground of insanity if the person had sufficient mental capacity to understand in a reasonable manner the nature of the particular transaction in which he was engaged and its consequences and effects upon his rights and interests.86 It is sometimes said that a

86 Frederic v. Wilkins, 182 Ala. 343, 62 South. 518; McEvoy v. Tucker (Ark.) 171 S. W. 888; Green v. Hulse, 57 Colo. 238, 142 Pac. 416; Smith v. Smith, 29 App. D. C. 408; De Nieff v. Howell, 138 Ga. 248, 75 S. E. 202; Dunn v. Evans, 139 Ga. 741, 78 S. E. 122; Barlow v. Strange, 120 Ga. 1015, 48 S. E. 344; Richardson v. Adams, 110 Ga. 425, 35 S. E. 648; Kelly v. Perrault, 5 Idaho, 221, 48 Pac. 45; Curtis v. Kirkpatrick, 9 Idaho, 629, 75 Pac. 760; Ring v. Lawless, 190 Ill. 520, 60 N. E. 881; Beaty v. Hood, 229 Ill. 562, 82 N. E. 350; Fitzgerald v. Allen, 240 Ill. 80, 88 N. E. 240; Kelly v. Nusbaum, 244 Ill. 158, 91 N. E. 72; Johnson v. Watson, 169 Ill. App. 218; Raymond v. Wathen, 142 Ind. 367, 41 N. E. 815; Mark v. North, 155 Ind. 575, 57 N. E. 902; Swartwood v. Chance, 131 Iowa, 714, 109 N. W. 297; Ellwood v. O'Brien, 105 Iowa, 239, 74 N. W. 740; Nowlen v. Nowlen, 122 Iowa, 541, 98 N. W. 383; Wathens v. Skaggs, 161 Ky. 600, 171 S. W. 193; Lassiter's Adm'r v. Lassiter's Ex'r, 23 Ky. Law Rep. 481, 63 S. W. 477; Bevins v. Lowe, 159 Ky. 439, 167 S. W. 422; Bannon v. P. Bannon Sewer Pipe Co., 136 Ky. 556, 119 S. W. 1170, 124 S. W. 843; Garner v. Garner, 4 Ky. Law Rep. 823; Chadwell v. Reed, 198 Mo. 359, 95 S. W. 227; Borchers v. Barckers, 143 Mo. App. 72, 122 S. W. 357; Soper v. Cisco (N. J.) 95 Atl. 1016; Blakeley v. Blakeley, 33 N. J. Eq. 502; Lozear v. Shields, 23 N. J. Eq. 509; Hoey v. Hoey, 53 App. Div. 208, 65 N. Y. Supp. 778; Jones v. Jones, 63 Hun, 630, 17 N. Y. Supp. 905; Wessell v. Rathjohn, 89 N. C. 377, 45 Am. Rep. 696; Pepple v. Pepple, 13 Ohio Cir. Ct. R. 43; Kime v. Addlesperger, 24 Ohio Cir. Ct. R. 397; Miller v. Folsom (Okl.) 149 Pac. 1185; Dean v. Dean, 42 Or. 290, 70 Pac. 1039; Wade v. Northup, 70 Or. 569, 140 Pac. 451; Mansfield v. Hill, 56 Or. 400, 107 Pac. 471, 108 Pac. 1007; Central Bank & Trust Co. v. Wiess (Tex. Civ. App.) 170 S. W. 820; Uecker v. Zuercher, 54 Tex. Civ. App. 289, 118 S. W. 149; Cox v. Combs, 51 Tex. Civ. App. 346, 111 S. W. 1069; Caddell v. Caddell (Tex. Civ. App.) 131 S. W. 432; Smith v. Guerre (Tex. Civ. App.) 175 S. W. 1093; Stringfellow v. Hanson, 25 Utah, 480, 71 Pac, 1052; Hatch v. Hatch (Utah) 148 Pac. 433; Day v. Seely, 17 Vt. 542; Stewart v.