insanity at the time of a conveyance has been held to be upon the guardian in an action to set aside a conveyance by his ward on the ground that the latter was insane at the time he made the conveyance. But the burden of showing that a conveyance by an insane person was made during a lucid interval, has been held to be upon the party claiming under the conveyance. It is doubtless true that in one sense the burden is ordinarily upon the party asserting insanity. As the presumption of sanity exists, in the absence of anything to the contrary, the burden of producing or going forward with evidence to show insanity is upon the party asserting it; but, under what seems to us to be the better rule, it does not necessarily follow that the presumption of sanity is to be given weight as evidence, in addition to permitting it to perform the ordinary office of a presumption, so as to require the party aserting insanity to establish it by preponderance of the evidence and relieve the other. party of the burden of ultimately establishing his case if that burden otherwise rests upon him. Attention has elsewhere been called to the conflicting views upon this subject in criminal cases, and what is regarded as the better rule is there stated. But the numerical weight of authority is, perhaps, in favor of the rule which places the burden upon the accused to establish insanity by a preponderance of the

N. H. 163; Egbert v. Egbert, 78 Pa. St. 326; Yardley v. Cuthertson, 108 Pa. St. 395, 1 Atl. 765; State v. Brown, 12 Minn. 538; O'Brien v. People, 48 Barb. (N. Y.) 274; Jack son v. Van Dusen, 5 Johns. (N. Y.) 144, 158; Weed v. Mutual Life Ins. Co., 70 N. Y. 561; Myatt v. Walker, 44 Ill. 485; Cotton v. Ulmer, 45 Ala. 378; Lilly v. Waggoner, 27 Ill. 395; Commonwealth v. Rogers, 7 Metc. (Mass.) 500; Howe v. Howe, 99 Mass. 88; 'Achey v. Stephens, 8 Ind. 411; Reg. v. Layton, 4 Cox Cr. Cas. 149; Sutton v. Sadler, 3 C. B. N. S. 87, and authorities cited in Vol. I, § 126, n. 293. The rule, however, varies in different jurisdictions, at least as to formal proof, in probating wills.

6 Paulus v. Reed, 121 Iowa 224, 96 N. W. 757; see also, Saxon v. WhitVOL. 3 ELLIOTT Ev.-49

aker, 30 Ala. 237; First Nat. Bank v. Wirebach, 106 Pa. St. 37; Farrell v. Brennan, 32 Mo. 328.

, 'Gingrich v. Rogers, (Neb.) 96 N. W. 156; Rogers v. Walker, 6 Pa. St. 371; Gangwere's Estate, 14 Pa. St. 417; Achey v. Stephens, 8 Ind. 411, and cases cited in the second note to the last preceding section. Statements of a lunatic made after the appointment of guardian or committee were held inadmissible in Hottle v. Weaver, 206 Pa. St. 87, 55 Atl. 838, there being no offer to prove that they were made during a lucid interval.

Vol. I, §§ 91-93, 126, and numerous authorities cited in note 294, p. 181; see also, Knights v. State, 58 Neb. 225, 78 N. W. 508, and note in 76 Am. St. 83-97.

§ 2279. Inquisition and records as evidence on question of sanity. In collateral proceedings a finding of lunacy upon an inquisition. which has not been superseded is presumptive though not, ordinarily, conclusive evidence of insanity.16 When the record of such an inquisition is offered in evidence in another proceeding it is generally held that its validity is not open to collateral attack.17 So, where a transaction is overreached by the finding of the jury in lunacy proceedings, that is, where the finding is after the time in question, but retrospectively includes it, it is presumptive but not conclusive evidence of insanity at the time of such transaction.18 And where there has been an inquisition, and appointment of a guardian or committee, or, in other words, after office found, contracts of the lunatic thereafter are generally held to be void, and it may be said in such cases that the lunacy record, so long as it remains in force, is conclusive evidence of incapacity.19 But an order made on ex

177, 29 N. E. 380; Kelly v. Miller, 39 Miss. 17; Van Zandt v. Mutual Ben. Life Ins. Co., 55 N. Y. 169.

10 Cooke v. Turner, 15 Sim. 611; Thomas v. Hatch, 3 Sumn. (U. S.) 170; Hawkins v. Grimes, 13 B. Mon. (Ky.) 257; White v. Palmer, 4 Mass. 147; Hunt v. Hunt, 13 N. J. Eq. 161; Hill v. Day, 34 N. J. Eq. 150; Hughes v. Jones, 116 N. Y. 67, 15 Am. St. 386, 22 N. E. 446; Christmas v. Mitchell, 3 Ired. Eq. (N. Car.) 535; Noel v. Karper, 53 Pa. St. 97; Hamilton v. Hamilton, 10 R. I. 538; M'Creight v. Aiken, Rice L. (S. Car.) 56; Herndon v. Vick, 18 Tex. Civ. App. 582, 583, 45 S. W. 852; Shumway v. Shumway, 2 Vt. 339; Blaisdell v. Holmes, 48 Vt. 492; Gangwere's Estate, In re, 14 Pa. St. 417, 53 Am. Dec. 554, and note; see also, Monongahela Nav. Co. v. Coon, 6 Pa. St. 379, and note in 47 Am. Dec. 474.

17 Gates v. Carpenter, 43 Iowa 152; Gillespie v. Hauenstein, 72 Miss. 838, 17 So. 602; Dutcher v. Hill, 29 Mo. 271, 274; Crow v. Meyersieck, 88 Mo. 411; Cook v. Cook, 53 Barb. (N.

Y.) 180; Dodge v. Cole, 97 Ill. 338, 37 Am. R. 111.

18 Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15. Am. St. 386; Banker v. Banker, 63 N. Y. 409, 413; Portsmouth v. Portsmouth, 1 Hag. Ecc. 355; Titcomb v. Vantyle, 84 Ill. 371; Wall v. Hill, 1 B. Mon. (Ky.) 290, 36 Am. Dec. 578; Breed v. Pratt, 18 Pick. (Mass.) 115; L'Amoureux v. Crosby, 2 Paige Ch. (N. Y.) 422, 22 Am. Dec. 655; Johnson v. Kincade, 2 Ired. Eq. (N. Car.) 470; Lancaster Co. Nat. Bank v. Moore, 78 Pa. St. 407, 21 Am. R. 24; Noel v. Karper, 53 Pa. St. 97; Knox v. Knox, 30 S. Car. 377, 9 S. E. 353; Hughes v. Hughes, 2 Munf. (Va.) 209.

19 Hughes v. Jones, 116 N. Y. 67, 22 N. E. 446, 15 Am. St. 386, 388, also giving history of lunacy inqui sitions; Wadsworth v. Sharpsteen, 8 N. Y. 388, 59 Am. Dec. 499; Pearl v. M'Dowell, 3 J. J. Marsh. (Ky.) 658; Elston v. Jasper, 45 Tex. 409; American Trust Co. v. Boone, 102 Ga. 202, 29 S. E. 182; McCormick v. Littler, 85 Ill. 62, 28 Am. R. 610; Wait v. Maxwell, 5 Pick. (Mass.)

parte proceedings by a statutory commission, or the like, committing a person to a lunatic asylum is not admissible to prove such person's insanity, at least where his contractual capacity is in issue.20 Yet, where one was sent to an asylum after a regular trial of the question of his sanity, the record of that trial was held to be competent evidence on the subject in a subsequent prosecution for crime,21 but the order of a statutory commission declaring a person insane and entitled to admission in the asylum for the insane is not conclusive; and the state, in a criminal prosecution may show by proper evidence that he was sane both before and after his admission to the asylum.22 Such a statutory proceeding is said to be very different from an inquisition of lunacy involving a matter of public interest and fixing by a judicial proceeding the status of the party as to all the world; and in a recent case the ex parte proceedings of such a commission finding that the accused was not insane, but at times feigned insanity, were held inadmissible against such accused in a criminal prosecution.23 It has been held, however, that the official records of the asylum or hospital are competent evidence on the question of the mental condition of a patient who has been confined in such institution.24

$2280. Conduct and appearance as evidence of insanity.-The language and conduct and even the appearance and general health of a person whose insanity is in question may be considered, when they throw light upon the subject, in connection with other circumstances in the case.25 It has been said that in determining the mental

217, 16 Am. Dec. 391; Boyer v. Berryman, 123 Ind. 451, 24 N. E. 249; Redden v. Baker, 86 Ind. 191; Dan v. Brown, 4 Cow. (N. Y.) 483, note in, 15 Am. Dec. 398; Flach v. Gottschalk Co., 88 Md. 368, 41 Atl. 908, 42 L. R. A. 745, and note in 71 Am. St. 426.

20 Leggate v. Clark, 111 Mass. 308; Knox v. Haug, 48 Minn. 58, 50 N. W. 934; Cropp v. Cropp, 88 Va. 753, 14 S. E. 529; Topeka Water Supply Co. v. Root, 56 Kans. 187, 42 Pac. 715; Dewey v. Allgire, 37 Neb. 6, 55 N. W. 276; Pflueger v. State, 46 Neb. 492, 64 N. W. 1094.

21 Wheeler v. State, 34 Ohio St. 394, 32 Am. R. 372.

22

"Goodwin v. State, 96 Ind. 550, and in this case and the case cited in the last preceding note, it was said that such evidence, even if competent, did not necessarily make a prima facie case.

23 Naanes v. State, 143 Ind. 299, 303, 304, 305, 42 N. E. 299; see also, Leggate v. Clark, 111 Mass. 308; Goodwin v. State, 96 Ind. 550, 564; Pfleuger v. State, 46 Neb. 493, 64 N. W. 1094.

24 Townsend v. Pepperell, 99 Mass. 40; Hempton v. State, 111 Wis. 127, 86 N. W. 596.

27

capacity of a person, his substantial business transactions are of greater weight than his foolish sayings and doings unconnected with business;26 but his irrational acts and beliefs may generally be shown as circumstances to be considered in connection with other evidence in the case. The defendant may generally prove not only irrational acts, conduct and delusions, but facts which show them to be such or which account for them and reveal an adequate cause, for mental aberration.28 But evidence that a cause existed which might tend to produce insanity has been held not to be sufficient of itself to prove insanity.29 "If a mild, quiet, amiable and modest man should. suddenly become irritable, harsh, suspicious, obscene, and profane, evidence of such a revolution of temperament and character would be admissible as tending to show mental derangement.30 But mere irritability of temper and excitability of disposition, without more, do not constitute insanity, nor are such peculiarities of themselves evidence of insanity." Nor are depravity and abandoned habits of themselves evidence of insanity.32 A person may make improvident bargains or be unthrifty or unsuccessful or even reckless in busi, ness, without being of unsound mind, and such facts do not of themselves prove insanity. But evidence thereof may be admissible in many cases in connection with other facts and circumstances tend

25 Clinton v. Estes, 20 Ark. 216; Halley v. Webster, 21 Me. 461; Doud v. Hall, 8 Allen (Mass.) 410; John Hancock Mut. Life Ins. Co. v. Moore, 34 Mich. 41; Commonwealth v. Buccieri, 153 Pa. St. 535, 26 Atl. 228; Irish v. Smith, 8 S. & R. (Pa.) 573, 11 Am. Dec. 648; McLeod v. State, 31 Tex. Cr. App. 331, 20 S. W. 749; Adams v. State, 34 Tex. Cr. App. 470, 31 S. W. 372; Parsons v. Parsons, 66 Iowa 754, 21 N. W. 570, 24 N. W. 564; State v. Duestrow, 137 Mo. 44, 38 S. W. 554, 39 S. W. 266; Daniel v. Daniel, 39 Pa. St. 191; see also, Yorke, In re, 185 Pa. St. 61, 63, 39 Atl. 1119; Wilson v. Mitchell, 101 Pa. St. 495; Vol. I, § 166.

20 Turner v. Hand, 3 Wall. Jr. (U. S.) 88; Hamilton v. Hamilton, 10 R. I. 538; McGinnis v. Kempsey, 27 Mich. 363.

"Smith's Case, 22 Pa. Co. Ct. 487, 489; Florey v. Florey, 24 Ala. 241; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118; Rush v. Megee, 36 Ind.

69.

28 People v. Wood, 126 N. Y. 249, 27 N. E. 362; French v. State, 93 Wis. 325, 67 N. W. 706; People v. Osmond, 138 N. Y. 80, 33 N. E. 739; Burkhart v. Gladish, 123 Ind. 337, 24 N. E. 118.

"Sawyer v. State, 35 Ind. 80.

30 Conely v. McDonald, 40 Mich. 150; Bitner v. Bitner, 65 Pa. St. 347.

31 16 Am. & Eng. Ency. of Law 611; Willis v. People, 32 N. Y. 715; see, however, Boswell v. State, 63 Ala. 307, 35 Am. R. 20; Brown v. Ward, 53 Md. 376, 36 Am. R. 422. 32 Hill v. Hill, 27 N. J. Eq. 214.

ing to show insanity,33 and shrewdness in trade and general success in business would often tend to show or to rebut inconclusive testimony of mental unsoundness, unless the act in question was influenced by some delusion. Evidence of one's religious beliefs or opinions regarding the existence of rewards and punishments in a future state has been held inadmissible to prove his insanity. And a general belief in spiritualism or witchcraft has been held not to be evidence of a want of mental capacity;35 but it might be competent, in some instances, in connection with other evidence, and an insane delusion that one's acts are directed by the spirit of some departed friend and may be sufficient to avoid acts done under its influence.36

34

§ 2281. Insanity at time in question-Evidence as to insanity at other times. The question to be decided is usually as to the mental condition of the person whose sanity is in issue at the very time of doing the act under investigation. But in order to ascertain this it is generally proper to receive evidence of the condition of his mind for a reasonable period both before and after that time, especially where it is claimed that his disorder is of a continuing or permanent nature in connection with other facts and circumstances of the case.38 "And where a party has put in issue his sanity at a

331 Beck Med. Jur. 745; Carmichael, In re, 36 Ala. 514; Henry v. Fine, 23 Ark. 417; Kenworthy v. Williams, 5 Ind. 375; Hall v. Hall, 17 Pick. (Mass.) 373; Noel v. Karper, 53 Pa. St. 97.

34 Gass v. Gass, 3 Humph. (Tenn.) 277, 284; Bonard's Will, 16 Abb. Pr. N. S. (N. Y.) 128; see also, Williams v. Williams, 90 Ky. 28, 13 S. W. 250; Schouler Wills (2d ed.), § 166.

*Turner v. Hand, 3 Wall. Jr. (U. S.) 88; Brown v. Ward, 53 Md. 376, 36 Am. R. 422; Beach, Matter of, 23 App. Div. (N. Y.) 411; Addington v. Wilson, 5 Ind. 137.

se Robinson v. Adams, 62 Me. 369, 16 Am. R. 473; Matter of Beach, 23 App. Div. (N. Y.) 411.

1281; Reg. v. Renshaw, 11 Jur. 615; Jones v. State, 13 Ala. 153; People v. Schmitt, 106 Cal. 48, 39 Pac. 204; Commonwealth v. Rogers, 7 Metc. (Mass.) 500, 41 Am. Dec. 458; State v. Huting, 21 Mo. 464; State v. Lewis, 20 Nev. 333, 22 Pac. 241; State v. Spencer, 21 N. J. L. 196; People v. Pine, 2 Barb. (N. Y.) 566; State v. Vann, 82 N. Car. 631; Nonnemacher v. Nonnemacher, 159 Pa. St. 634, 28 Atl. 439; State v. Stark, 1 Strobh. L. (S. Car.) 479; Shultz v. State, 13 Tex. 401; Clark v. State, 8 Tex. App. 350; Carter v. State, 12 Tex. 500, 62 Am. Dec. 539; Webb v. State, 5 Tex. App. 596; Williams v. State, 7 Tex. App. 163; People v. Schmitt, 106 Cal. 48, 49, 39 Pac. 204. 38 Beavan v. M'Donnell, 10 Exch.

27 Hadfield Case, 27 How. St. Tr. 184; Stevens v. Vancleve, 4 Wash.