they so impressed his mind, became, as it were, incorporated into his mental constitution, as to control his judgment in regard to the use and disposition of his property, so as to prevent his perceiving or appreciating the ordinary duty he owes to his family, or their claims upon him as a father in that respect." He then added that if they found "this will was made under a controlling influence," such as he had described in his charge as the result of delusion, they should find against the will. On the other hand, he said to them, if the evidence did not fairly lead to the conclusion that the testator's mind was overpowered and controlled by his peculiar views so as to prevent him from exercising a reasonable or rational judgment in relation to the disposition of his property, their verdict should be in favor of the will, "however absurd, ridiculous, or unfounded you may individually or collectively believe his peculiar views on faith and its effects to have been."

The distinction was clearly taken between the absurdity of the views or delusions to which the testator might hold and their effect in overturning his judgment and directing his conduct; and the jury was told in effect that the views or delusions were in themselves harmless, unless they had unsettled the testator's mind, and controlled his will in the disposition of his property. This was a correct statement of the rule, and the assignments of error to the charge of the learned judge are not sustained.

The tenth, eleventh, and twelfth assignments of error are more troublesome. The examination of the witnesses was conducted in a manner that was calculated to lead the jury to lose sight of the distinction on which the case rested, viz., the distinction between general and partial insanity. General mental disturbance was not alleged. In fact, sanity upon all subjects save one was admitted. The testator was competent to make 603 a will, unless he was subject to a delusion that so dominated his judgment as to render him insensible to the considerations that control the action of persons not so afflicted. The questions for the jury were therefore: 1. Was John Trich subject to a delusion amounting to partial insanity? 2. What was the character of his delusion, and to what did it relate; and 3. Did it control his judgment and direct a disposition of his property made by his last will and testament to any, and, if so, to what, extent?

His will provided for the payment of his debts, for the marking of his grave by suitable head and foot stones, for the support of his wife during her life, for the sale of his real estate and the execution of deeds therefor by his executor, and the collection into one fund of the proceeds of his entire estate. All this is in accordance with a very common practice, and shows a very clear knowledge of the extent and character of his estate, and a recognition of his duty to his wife. It is only in his treatment of his children that his alleged delusion appears. He discards them, and gives his entire estate to two institutions alleged to be dependent upon the faith of their proprietors for their daily income. Was this disposition of his estate the result of a controlling delusion? This is the question on which the contestants must stand. The course of the examination lost sight of this. The question put to Tilbrook was whether the testator was competent to make a will and dispose of his property." The learned judge felt that this was not the proper question, and interposed the query whether the witness ought not rather to be asked whether the testator was sane or insane. But both forms of the question are subject to the same objection. They overlook the distinction between general insanity and the existence of an insane delusion. The witness Blackstone felt the difficulty of correctly answering the same general question. He said that the testator was competent to make a will pleasing to himself. He was then asked if the testator's "ideas and opinions would or would not affect his judgment in the disposal of his property." The learned judge correctly excluded the question, for the reason, no doubt, that the fact that the judgment is controlled by one's "ideas and opinions" is an evidence of sanity rather than of the existence of insane delusion. The witness Codville was 604 asked the same general question whether John Trich "was fit and competent to make a will in February, 1882, disposing of his property." It was not denied that he was fit and competent except as to such subject or persons as might come within the range of his delusion, yet the witnesses were allowed to give an opinion that he was not fit or competent, in the same manner that would have been allowable if general insanity had been alleged.

The learned counsel for the contestants hold that the case of Wogan v. Small, 11 Serg. & R. 141, is an authority for this line of examination; but that case is not in point. The alle

gation there made was that the testator was incompetent because of general insanity, and his general mental condition was therefore a proper subject of inquiry. Even in such a case the better form of question is that suggested by the learned judge of the court below on the examination of Tilbrook. The subject under investigation being the existence of general insanity, the question ought to be directed to the mental condition of the testator.

Testamentary capacity is presumed, and the burden of proof rests on him who denies its existence in any given case: Grubbs v. McDonald, 91 Pa. St. 237. When the presence of insanity is shown the presumption shifts, and incapacity is a legal conclusion. But to show insanity the witnesses must first testify to facts from which they reach the conclusion that the testator is insane. They may then give their opinions about his mental state or condition, and the general question whether he was sane or insane is proper: Dickinson v. Dickinson, 61 Pa. St. 401; Titlow v. Titlow, 54 Pa. St. 216; 93 Am. Dec. 691; Shaver v. McCarthy, 110 Pa. St. 339; Elcessor v. Elcessor, 146 Pa. St. 359.

Here general insanity was not alleged. The incapacity, if any existed, grew out of the existence of a deluson resulting in partial insanity. Was his last will, so far as it affected his children, the result of the peculiar delusion to which he was subject? Did he omit to make any provision for them for reasons resting on an existing state of facts such as might influence the action of a sane man? Or did he overlook their relation to him and his own parental obligation, under the influence of an insane impulse or the direction of an imaginary communication from God or from the spirits of the dead?

605 There was evidence before the jury from which they might find the existence of a delusion, and that his children were disregarded under its influence; but whether their verdict did in fact rest on such of the evidence as was properly before them, or was influenced by evidence that should have been excluded, it is impossible now to determine. We are compelled, therefore, although with great reluctance, to send this case back for another trial in which the investigation may be confined to the questions on which the contest must rest, viz: Was the testator the victim of a delusion? this delusion affect his position toward his children and render him insensible to his parental obligations? Was so

Did

much of his will as gave his estate to the two institutions named in it instead of to his own children the result of his delusion?

The judgment is reversed and a venire facias de novo awarded.

WILLS-TESTAMENTARY CAPACITY-INSANE DELUSIONS-EFFEct of. A will is invalidated by a delusion where it is the result of such delusion, but not otherwise, as a general rule: Lucas v. Parsons, 24 Ga. 640; 71 Am. Dec. 147, and note. See the discussions of this question to be found in the notes to the following cases: In re Cline's Will, 41 Am. St. Rep. 854; Clapp v. Fullerton, 90 Am. Dec. 690; Addington v. Wilson, 61 Am. Dec. 84; Brown v. Ward, 36 Am. Rep. 426, and Pidcock v. Potter, 8 Am. Rep. 186. WILLS-TESTAMENTARY CAPACITY-EFFECT OF PARTIAL INSANITY. — Partial insanity does not disqualify from making a will: Kingsbury v. Whitaker, 32 La. Ann. 1055; 36 Am. Rep. 278; unless it operated upon the mind of the testator in making his testamentary disposition: Pidcock v. Potter, 68 Pa. St. 342; 8 Am. Rep. 181; Den v. Gibbons, 22 N. J. L., 117; 51 Am. Dec. 253, and note; Potts v. House, 6 Ga. 324; 50 Am. Dec. 329, and note; Cotton v. Ulmer, 45 Ala. 378; 6 Am. Rep. 703. See the notes to Lee v. Lee, 17 Am. Dec. 731, and Clark v. Fisher, 19 Am. Dec. 408.

CASES

IN THE

SUPREME COURT

OF

SOUTH CAROLINA.

WOODS v. BRYAN.

[41 SOUTH CAROLINA, 74.]

JUDGMENT BY CONFESSION-STATEMENT OF INDEBTEDNESS.-Under a statute requiring a statement of the facts out of which an indebtedness arose, there is no authority, in an action upon a note, to enter a con. fession of judgment, where the note is merely described, but such statement is not made. As to third persons, such a judgment is void. JUDGMENT BY CONFESSION-APPEAL-COSTS.-An original question cannot be raised for the first time on appeal. Hence, the question as to whether a judgment by confession, otherwise absolutely void, could be made legal and valid to the extent of costs charged by the officers of court for services rendered in obtaining such judgment, cannot be urged on appeal where it was not raised in the court below. JUDGMENT BY CONFESSION, VOID, IS NOT MADE VALID BY RENEWAL OF EXECUTION OR Revival of JUDGMENT.-A confessed judgment, void because it does not comply with the statutory requirements, cannot, by successive renewals of the judgment, under orders of court, be made valid and binding as against a subsequent mortgagee who was not a party or privy to such proceedings. JUDGMENT, VOID CONFESSION-COLLATERAL ATTACK.-The institution of an action of foreclosure against the mortgagor and a claimant of his title under a sheriff's sale, made under a prior confessed judgment against the mortgagor, and in which it is alleged that such judgment is void, cannot be regarded as a collateral attack upon such judg. ment where it appears from the record to be void for noncompliance with the statutory requirements. Such a judgment is not entitled to any recognition, and may be disregarded as a nullity whenever and wherever it is encountered in any proceeding, direct or collateral. JUDGMENT-COLLATERAL ATTACK.-To attack a judgment for invalidity, though not in a direct proceeding to reverse, annul, or set it aside, and which is shown by the record itself to be infirm, does not constitute a collateral attack upon such judgment.