87

person has capacity to make a deed if he has sufficient mind. to be capable of transacting ordinary business affairs, or of pursuing his own ordinary business in his usual manner. But this is too loose. The proper inquiry is whether he was capable of understanding and appreciating the nature and effect of the one particular act or transaction which is challenged. "It is evident that it requires less capacity to do a simple act, or make a contract involving no complications, than it does to make understandingly an agreement involving complications and imposing various obligations. One may have but little business capacity, and a weak intellect or impaired faculties, and yet be capable of making a binding contract. All that the law requires to make the contract effectual is that a man should so have possession of his reason as to know the character of the act he is about to perform and be capable of carrying that act into effect." 88

When we speak of understanding the nature of the transaction engaged in, it is meant that the person in question should be capable of comprehending, for instance, the difference between a deed and a mortgage, or between a bond and a promissory note, and, in the case of a conveyance, what property he is dealing with and what disposition he is about to make of it. If the effect of the instrument as a conveyance of property is understood, it is not necessary that he should have the ability to understand the legal effect of the words employed. But contractual capacity cannot be predicated of a person whose mind and memory are so impaired that he cannot understand the nature of the property being dealt with, nor his relation to it or power over it, and that he is incapable of recognizing facts as to its previous disposition which should be within his own knowl

89

Flint, 59 Vt. 144, 8 Atl. 801; Allen's Adm'rs v. Allen's Adm'rs, 79 Vt. 173, 64 Atl. 1110; Slafter v. Savage (Vt.) 95 Atl. 790; Wampler v. Harrell, 112 Va. 635, 72 S. E. 135; Teter v. Teter, 59 W. Va. 449, 53 S. E. 779.

87 Ring v. Lawless, 190 Ill. 520, 60 N. E. 881; King v. Humphreys, 138 Pa. 310, 22 Atl. 19.

88 Moore v. Gilbert, 175 Fed. 1, 99 C. C. A. 141. And see Nelson v. Thompson, 16 N. D. 295, 112 N. W. 1058; Smith v. Smith, 29 App. D. C. 408.

89 Moorhead. v. Scovel, 210 Pa. 446, 60 Atl. 13; Fitzgerald v. Tvedt, 142 Iowa, 40, 120 N. W. 465.

91

edge," nor of a grantor whose mind is so weak that he has no intelligent conception of the quantity or quality of the land he is about to convey, cannot count money, and does not know whether ten dollars is more or less than a hundred dollars. On the other hand, it goes far to show sufficient mental capacity if a grantor, when about to sign the deed, inquired whether or not a former deed had been placed on record, and expressed concern last he should be placed in an awkward position on account of it.92

Again, the person whose sanity is questioned should be able to understand the consequences and effects of what he is doing. Thus, if one transfers all or the greater part of his property to one of his children, he should be able to understand that the gift is irrevocable and will make him dependent upon the charity or dutifulness of the grantee," or that it will deprive his other children of their equal shares in the distribution of his estate, and if he cannot grasp these facts, it cannot be said that he has mental capacity to make the deed. But a grantor has sufficient mental capacity to execute a valid deed if, at the time it was made, he understood the business in which he was engaged, knew the extent and value of the property, and how he wanted to dispose of it, and was able to keep such facts in his mind long enough to plan and effect the conveyance without prompting or interference from others." And to sustain a deed of gift disposing of the bulk of a large estate, if the grantor has the capacity to understand what he is doing, it is not necessary that he should have actual knowledge or remembrance of the extent, character, and location of each piece of real estate or kind of personal property which he possesses, nor that he should remember all his collateral relatives and their claims upon his bounty, and be able to give their names and addresses."

90 Hammell v. Hyatt, 59 N. J. Eq. 174, 44 Atl. 953.

91 Paulter v. Manuel, 25 Okl. 59, 108 Pac. 749.

92 Cutts v. Young, 147 Mo. 587, 49 S. W. 548.

93 Orr v. Pennington, 93 Va. 268, 24 S. E. 928.

94 Dean v. Dean, 42 Or. 290, 70 Pac. 1039.

95 Hayman v. Wakeham, 133 Mich. 363, 94 N. W. 1062; Terry v. Terry, 170 Mich. 330, 136 N. W. 448.

96 Bowdoin College v. Merritt (C. C.) 75 Fed. 480.

98

Further, a person cannot be said to be capable of giving an intelligent assent to a transaction unless he has the mental ability to exercise some measure of judgment and will in relation to it.97 If his mind is so far a blank that he will register automatically the wishes of another, it is clear that he does not possess the requisite degree of intelligence. He must be able to decide intelligently whether or not he desires to do the particular thing which is before him."s This does not mean that he should be able to act wisely or discreetly, that he should possess shrewdness, or that he should be able to drive a good bargain." But at least he must be able to exercise some judgment as to whether he will be benefited or injured by the act in question, or, as otherwise stated, he must be able to understand and protect his own interests in dealing with his property.100 And indeed it has been said, in one of the cases on the subject, that, while one may have the mental capacity to execute a deed as a gift to a child in consideration of love and affection, if he can understand his ordinary business and what disposition he is making of his property, yet, to have sufficient capacity to make a valid deed on a sale of the property, he must possess sufficient mental strength to judge of values and successfully to oppose fraud and undue influence, 101

The proposition that it requires a greater degree of mental capacity to make a valid deed or contract than it does to make a valid will has been affirmed in some of the authorities and denied in others.102 The truth is that any such

97 Farmers' State Bank v. Farmer (Tex. Civ. App.) 157 S. W. 283; Paulus v. Reed, 121 Iowa, 224, 96 N. W. 757.

98 Mann v. Keene Guaranty Sav. Bank, 86 Fed. 51, 29 C. C. A. 547; Sawyer v. White, 122 Fed. 223, 58 C. C. A. 587; Hacker v. Hoover, 89 Neb. 317, 131 N. W. 734; Brugman v. Brugman, 93 Neb. 408, 140 N. W. 781.

99 Sprinkle v. Wellborn, 140 N. C. 163, 52 S. E. 666, 3 L. R. A. (N. S.) 174, 111 Am. St. Rep. 827; Woodville v. Woodville, 63 W. Va. 286, 60 S. E. 140.

100 Beaty v. Hood, 229 Ill. 562, 82 N. E. 350; Noble v. Noble, 255 Ill. 629, 99 N. E. 631.

101 Jones v. Thomas, 218 Mo. 508, 117 S. W. 1177.

102 See Greene v. Maxwell, 251 Ill. 335, 96 N. E. 227, 36 L. R. A. (N. S.) 418; Bond v. Branning Mfg. Co., 140 N. C. 381, 52 S. E. 929; Ennis v. Burnham, 159 Mo. 494, 60 S. W. 1103; Neel v. Powell, 130

comparison is idle and unprofitable because purely abstract. The true test in every case, as above stated, is whether or not the person had enough reason and intelligence to understand the nature and consequences of the particular transaction before him, and to exercise a reasonable measure of judgment and choice in regard to it; and this test is to be applied whatever be the nature of the act, whether it be the making of a deed, a will, a gift, or any other contract or disposition of property. At the same time, it is unquestionably true that the degree or measure of mental power required may vary with the nature of the particular transaction, and may be higher or lower according as the business in hand is complicated or simple. It is said that where the transaction involved is a conveyance of real estate made by a father to his son, in consideration of the latter's agreement to maintain the former during his life, and is done with a view to securing a home and support for the father, and also as an advancement to the son, equalizing him in the father's estate with the other members of the family, it would be error to require as great a degree of mental capacity as would be demanded if the transaction were with a stranger or of an adversary character.103 There is also a dictum to the effect that, where a person is competent to contract in law, a court of equity will not regard him as incompetent.104 And a person's mind may be so far impaired as to afford grounds for setting aside an agreement made by him, though the incompetency is not sufficient to justify the appointment of a guardian or committee for his person and estate.105

§ 263. Weakness of Intellect.-Mere mental weakness, or feebleness or dullness of intellect, from whatever cause arising, if it does not amount to imbecility or render the party incapable of understanding the nature and effects of his act, does not incapacitate him from making a valid deed or contract. Proof of such feeble-mindedness does not overcome

Ga. 756, 61 S. E. 729; Best v. House (Ky.) 113 S. W. 849; Martin v. Upson, 187 Mo. App. 631, 173 S. W. 69.

103 Pepple v. Pepple, 13 Ohio Cir. Ct. R. 43.

104 Devall v. Devall, 4 Desaus. (S. C.) 79.

105 In re Morgan, 7 Paige (N. Y.) 236.

the legal presumption of sanity; and a contract or deed made by such a person should not be declared void on that ground in the absence of evidence that an unfair advantage was taken of his condition, or that he was the victim of fraud, duress, or undue influence.106 Thus, although it appears that the party in question was a man of unusually weak understanding, and capable of conducting only the most simple and most ordinary business, yet this alone is not sufficient ground for setting aside his contracts,107 nor should they be vacated on a showing that his intelligence is of such a low order, or his faculties so far impaired, that he cannot transact business prudently and judiciously, or that he exhibits weakness and folly in his business dealings.108 And mere habits of forgetfulness, whether in the young or the old, are not of themselves sufficient evidence

106 Oxford v. Hopson, 73 Ark. 170, 83 S. W. 942; Green v. Hulse, 57 Colo. 238, 142 Pac. 416; Reeve v. Bonwill, 5 Del. Ch. 1; Clarke v. Hartt, 56 Fla. 775, 47 South. 819; Johnson v. Coleman, 134 Ga. 696, 68 S. E. 480; Hartley v. Marietta Nursery Co., 138 Ga. 736, 76 S. E. 39; Kirk v. Kirk, 123 Ga. 104, 50 S. E. 928; Nance v. Stockburger, 111 Ga. 821, 36 S. E. 100; Walton v. Malcolm, 264 Ill. 389, 106 N. E. 211, Ann. Cas. 1915D, 1021; Saffer v. Mast, 223 Ill. 108, 79 N. E. 32; Beaty v. Hood, 229 Ill. 562, 82 N. E. 350; Pickerell v. Morss, 97 Ill. 220; Kimball v. Cuddy, 117 Ill. 213, 7 N. E. 589; Miller v. Craig, 36 Ill. 109; Baldwin v. Dunton, 40 Ill. 188; Rogers v. Higgins, 57 Ill. 244; Graham v. Castor, 55 Ind. 559; Somers v. Pumphrey, 24 Ind. 231; Henry v. Ritenour, 31 Ind. 136; Paulus v. Reed, 121 Iowa, 224, 96 N. W. 757; Bevins v. Lowe, 159 Ky. 439, 167 S. W. 422; Hovey v. Hobson, 55 Me. 256; Richardson v. Travelers' Ins. Co., 109 Me. 117, 82 Atl. 1005; Cain v. Warford, 33 Md. 23; Davis v. Phillips, 85 Mich. 198, 48 N. W. 513; Akers v. Mead (Mich.) 154 N. W. 9; Wherry v. Latimer, 103 Miss. 524, 60 South. 563, 642; Mulloy v. Ingalls, 4 Neb. 115; Dewey v. Allgire, 37 Neb. 6, 55 N. W. 276, 40 Am. St. Rep. 468; West v. West, 84 Neb. 169, 120 N. W. 925; Dennett v. Dennett, 44 N. H. 531, 84 Am. Dec. 97; Odell v. Buck, 21 Wend. (N. Y.) 142; Rippy v. Gant, 39 N. C. 443; Hodges v. Wilson, 165 N. C. 323, 81 S. E. 340; Lamb v. Perry, 169 N. C. 436, 86 S. E. 179; Kime v. Addlesperger, 24 Ohio Cir. Ct. R. 397; Loman v. Paulin (Okl.) 152 Pac. 73; Aiman v. Stout, 42 Pa. 114; Moorhead v. Scovel, 210 Pa., 446, 60 Atl. 13; Woodville v. Woodville, 63 W. Va. 286, 60 S. E. 140; Henderson v. McGregor, 30 Wis. 78.

107 Harris v. Wamsley, 41 Iowa, 671.

108 Boyer v. Berryman, 123 Ind. 451, 24 N. E 249; Siemon v. Wilson, 3 Edw. Ch. (N. Y.) 36; Smith v. Beatty, 37 N. C. 456, 40 Am. Dec. 435.