Boorman vs. The Northwestern Mutual Relief Ass'n.

conditions and payment of all assessments by the assured, is alleged, and judgment is demanded for the sum of $2,000, alleged to be due upon the original policy of insurance. The answer denies any insanity or incompetency on the part of Holman Boorman, and alleges that he exchanged policies voluntarily and while in full possession of his faculties. The answer also alleges that the assured committed suicide, and pleads the clause in the second policy excluding the risk of suicide as a defense.

At the close of the plaintiff's evidence the circuit judge held that there was no proof of insanity or incapacity to transact business, and directed a verdict for the defendant, and from judgment thereon the plaintiff appealed.

For the appellant there were briefs by Bushnell, Rogers & Hall, and oral argument by F. W. Hall. They contended, inter alia, that it is difficult to understand how a witness who was nonexpert could have a better opportunity for judging the mental condition of a person than by constant association with him at the same work for ten hours a day for two weeks time. The ruling excluding such testimony is contrary to the weight of authority. Woodcock v. Johnson, 36 Minn. 217; Colee v. State, 75 Ind. 512; Conn. Mut. L. Ins. Co. v. Lathrop, 111 U. S. 619; 7 Am. & Eng. Ency. of Law, 504; Burnham v. Mitchell, 34 Wis. 130; Yanke v. State, 51 id. 464; Smith v. Hickenbottom, 57 Iowa, 733; Holcomb v. State, 41 Tex. 125; Blackstone v. Standard L. & Acc. Ins. Co. 74 Mich. 592.

For the respondent there was a brief by H. W. Chynoweth and Burr W. Jones, and oral argument by Mr. Chynoweth. They argued, among other things, that there is no evidence in the case of any insanity on the part of the assured sufficient to warrant the deduction that he was not perfectly competent to understand the transaction by which the exchange was consummated. The proof shows that he did understand it. Under the facts and circumstances of the

Boorman vs. The Northwestern Mutual Relief Ass'n.

case the law itself stamps the exchange as binding and valid. Lynch v. Doran, 95 Mich. 395; Blakely Will Case, 48 Wis. 294; English v. Porter, 109 Ill. 285; Buswell, Insanity, §§ 271, 273, 274, 276; Tozer v. Saturlee, 3 Grant, Cas. 162; Jackson v. King, 4 Cow. 207, 217 et seq.; Cassoday, Wills, § 438, 440; Van Guyslin v. Van Kuren, 35 N. Y. 70; Wilson v. Mitchell, 101 Pa. St. 495; Chafin Will Case, 32 Wis. 557; Prentis v. Bates, 88 Mich. 567. The opinion of the nonexpert witness as to the sanity of the deceased was properly excluded on the ground that he had not stated sufficient facts on which to predicate an opinion. 7 Am. & Eng. Ency. of Law, 506, 507; Denning v. Butcher, 59 N. W. Rep. 69; Yanke v. State, 51 Wis. 469, 470; Turner v. Cook, 36 Ind. 129; Mull v. Carr, 5 Ind. App. 491; Lawson, Expert Ev. 476; McLeod v. State, 31 Tex. App. 331; Hite v. Comm. 20 S. W. Rep. 217; Brown v. Comm. 14 Bush, 405.

WINSLOW, J. After careful examination of the testimony given on the trial touching on the question of the mental capacity of Holman Boorman when he made the exchange of certificates, we are entirely satisfied that the trial judge was right in holding that there was no testimony to go to the jury which tended to prove him mentally incompetent to make a valid exchange. The question was not whether he at some time had a delusion upon some subject, nor yet whether he always reasoned wisely or prudently, but," when capacity to do a certain act is in issue, the question is whether the alleged insane person had sufficient mental ability to know what he was doing and the nature of the act done." Burnham v. Mitchell, 34 Wis. 117. "The law recognizes the fact that there may be derangement of mind as to particular subjects, and yet capacity to act on other subjects.

The proof which is necessary to invalidate a man's act by reason of his insanity must show inability to exercise reasonable judgment in regard to such act." Busw.

Boorman vs. The Northwestern Mutual Relief Ass'n.

Insan. 270. There is no testimony in this case which tends to show that Holman Boorman did not fully understand the proposition that was made to him by the defendant company, and that he did not reason upon it intelligently and act rationally. On the contrary, the testimony satisfactorily establishes the fact that he did so understand, reason, and

We shall not undertake to review the testimony in detail. The main facts relied upon to prove mental incapacity are that his disposition seemed to change after the sudden death of his wife, and that he became sullen, ugly, and quarrelsome; that he fell out with his mother and treated her unkindly, finally charging her with wanting to get his insurance, and leaving her house in a passion, about a week before his death; that he said one evening in February before his death that nine men were following him or were going to kill him, and at another time that a man chased him at night; that he had trouble with a fellow laborer, and threatened to lick him; and finally that he took his own life, either deliberately or by accident. On the other hand, the evidence showed that he had fallen into the drinking habit during the last three months of his life, and was more ugly when in liquor; that he discussed the question of change of policies with his relatives; told them that the company wanted him to change them; that he sent the money to his mother to pay his assessments; that he wrote on the new certificate a request that the money be divided,- $500 to his mother, and the balance to be divided between a sister and a young lady to whom he seems to have become engaged after his first wife's death. There is no evidence that his mind was ever in the least unsettled or flighty upon any business matter. There is, it is true, some testimony given by a medical expert in reply to a hypothetical question, to the effect that he thought, upon the facts stated, that the deceased was insane when he died. He also stated, however, in substance, that he might have been capable of doing

Boorman vs. The Northwestern Mutual Relief Ass'n.

ordinary business, depending on the question whether there were any delusion in his mind regarding it. There was no evidence of any such delusion, hence we do not regard this testimony of sufficient weight to justify submission of the question to a jury.

There was evidence given by a witness that he worked with Boorman a few days, cutting ice, in February before his death, and that deceased became quarrelsome and got mad at the witness because, as he said, witness did not drive the horse straight while he (Boorman) was holding the ice plow. On the strength of this testimony the plaintiff's counsel proposed to ask him whether, in his judgment, Boorman was of sound mind at the time. An objection to this question was sustained on the ground that the witness had not shown enough facts upon which to predicate an opinion as to insanity, and this ruling is alleged as error. We think the ruling was right. It is the province of the court, in the exercise of a wise, legal discretion, to decide whether the facts on which a nonexpert's opinion as to a person's sanity is based entitle him to express his opinion to the jury. Denning v. Butcher (Iowa), 59 N. W. Rep. 69. This must be so, otherwise a nonexpert, after detailing the most trivial circumstance, might state his opinion as to sanity or insanity of the person whose sanity was in question. Such a rule could not be endured. In this instance the trial court rightly exercised its discretion.

This action is brought to recover upon the first or original certificate, and, it appearing that there was a valid surrender of that certificate or contract and acceptance of a different contract, the court was entirely right in directing a verdict for the defendant.

By the Court.- Judgment affirmed.

Brown vs. The City of Baraboo.

BROWN, Appellant, vs. THE CITY OF BARABOO, Respondent.

March 12-April 3, 1895.

Descent: Next of kin: Husband and wife: Tenants in common.

Under Terr. Stats. of 1839, p. 184, sec. 38 (providing that the land of a person dying intestate and without children "shall descend equally to the next of kin in equal degree, and those who represent them, computing by the rules of the civil law"), the father and mother of the deceased, if living, were the next of kin, and the land descended to them equally as tenants in common, and upon the death of the mother her moiety descended to her heirs.

APPEAL from a judgment of the circuit court for Sauk -county: R. G. SIEBECKER, Circuit Judge. Reversed.

This is an action of ejectment for the recovery of the undivided four-sevenths of an undivided half of a certain parcel of land in the city of Baraboo. George W. Brown died intestate, seised of the entirety of the premises, December 15, 1847, and without any children. Both his father, Chauncey Brown, and his mother, Clarissa Brown, survived him, and the latter predeceased her husband, dying intestate February 26, 1854. The plaintiff, also a son of the said Chauncey and Clarissa Brown, claims the interest in the premises for which he sues, as an heir of his deceased mother and as grantee of the interest of three others of her heirs. Having produced evidence to show that he was the owner of four sevenths of the interest in the premises, if any, of which his mother died seised, he claimed that upon the death of George W. Brown intestate the entirety of the premises descended equally to his said father and mother, as his next of kin, computing by the rules of the civil law. After the plaintiff had rested his case the court gave judg ment of nonsuit against the plaintiff, upon the ground that George W. Brown's mother, under whom alone the plaintiff claimed title, took no interest whatever in the premises, and