Scottish Court of Session Decisions

The nature of the deed—its structure as simple or complicated—its character as rational or silly—its fitness as judicious or extravagant —must be taken into consideration when judging of the capacity of the testator. It is impossible to consider satisfactorily the question of capacity to make the will if we exclude an element so important as the rationality of the will itself. I do not at all mean to say that because a will is rational and equitable the question of the capacity of the testator is thereby either excluded or solved. By no means. But where the will, or the instruction for the will, has been written by the hand and framed out of the thoughts of the testator himself, the rational character, and even the just and equitable and appropriate character of the will affords important evidence of capacity.

In this case the will was prepared by agents of the highest respectability from instructions written and framed by Major Nisbet himself. These instructions are clear, intelligent, and rational; and it can scarcely be denied that the will itself, prepared in accordance with these instructions, is not only reasonable, but is judicious and appropriate.

There is, in my opinion, no reason to doubt that the instructions to which I have referred were not only written by the testator, but originated with him, and were the unassisted product of his own thoughts. The act of framing and writing these instructions is, to use the words of Sir William Wynne in the case of Cartwright (Phillimore's Reports, page 90), “a rational act rationally done.” On the challenge of such an act on the ground that it is the doing of an insane man, I am of opinion that the rationality of the act creates, at the outset, a presumption in favour of the sanity of the testator at the date of framing the instructions.

We thus enter on the consideration of the sanity or insanity of the testator with two counter presumptions at starting—the one presumption being against his sanity in respect of his previous unsoundness of mind, and of his actual residence as an inmate of the asylum at the date of the will; and the other presumption being in favour of his sanity, in respect of the rational and judicious character of the instructions for the will which, alone and without assistance, he framed and committed to writing.

The comparative force of these counter presumptions is materially affected by the fact that, whatever was the amount of Major Nisbet's mental disease, it was certainly aggravated, and, I think, was to a great extent caused, by habits of intemperance, of which the influence would be mitigated by long confinement and restraint. The reasonable probability of recovery, or of lucid interval, is in such a case increased.

I have carefully studied the proof in the case, and the letters of the testator; and I concur with the Lord Ordinary in the view which he has taken of that proof and of these letters. I shall not occupy your time by commenting in detail on the evidence, or on the letters. I think that there is no proof of any delusion in Major Nisbet of such a nature and character as to affect the whole mind, and lead to the result of incapacity to make a testament. The only specific delusion mentioned—that relating to the door of his bed-room, which he supposed to be speaking to him—may well have occurred during an attack of delirium tremens, and it is not said to have returned after 1863. There is no reason to suppose that he was under that delusion, or under any specific delusion, at the date of the will.

It is, I think, sufficiently proved that Major Nisbet was for several years subsequent to 1863, and up to near the close of 1869, labouring under some degree of mental disease. He was transferred from one lunatic asylum to another, and his disordered state of mind is proved by the evidence of several medical gentlemen. Of this I have no doubt. I think it also clear that to a great extent his unsoundness of mind was caused by the habits and the cravings of intemperance.

His letters, of which a great many are before us, have been strongly founded on as conclusive indications of insanity. When viewed in connection with the medical evidence of his state of mind previous to the close of the year 1869, these letters are certainly important. But the immediate question for consideration is, what was the capacity of Major Nisbet when he prepared and executed this will? On that question I cannot think that the letters before us, read with reference to the facts disclosed on the proof, are at all conclusive. The writer of these letters was evidently a very singular and eccentric man, strange, wayward, and flighty, with a curious under-current, sometimes of caustic humour, and sometimes of practical sagacity. But I am not satisfied that the letters prove him to have been entirely deprived of reason, or absolutely insane. He was not furious—he was not an idiot—he did not labour under any fixed specific delusion. Even if he had remained in the state in which he was in October 1869, it is by no means certain that he had not the capacity to make a simple and rational will. But we have important evidence applicable to his state of mind between October 1869 and the date of the will.

We have the very important evidence of Dr Thomas Thomson, the medical superintendent of Whitehouse Lunatic Asylum. He had the best possible opportunity of judging. He was well acquainted with Major Nisbet's previous state; he knew, also, to how great a degree his ailments were aggravated by drink, and mitigated by quiet and restraint in living. He had him under his charge, and he saw him from day to day. In 1867 he thought him insane and not likely to recover. Yet in October 1869 he began to observe symptoms of improvement, which continued during the two succeeding months; he then noticed the effect on his mind of the severe bodily disease, diabetes, of which he died, and he thought that while weakening his body it “had an effect in clearing his mind,” a result which he had observed in former experience. He states his opinion decidedly, that in January 1870 Major Nisbet was sane. He adds—“I was perfectly decided on 28th January.” This opinion is, in my estimation, most important. It is the deliberate opinion of a man of skill and experience, who was well acquainted with the patient—who had ample means of observation up to the last—and who was quite free from bias or prejudice.

Then we have the most important evidence in the clear and authoritative opinion of Dr Warburton Begbie. He was called in to visit Major Nisbet when he was suffering from severe diabetes on 27th November 1869. That was after the time when the improvement which Dr Thomson had observed commenced. He then thought him sane and intelligent, though peculiar. He afterwards visited him for the purpose of ascertaining his mental capacity on 28th January 1870; and, after particular observation and conversation, he arrived at the conclusion that Major Nisbet was “an eccentric man, but a sane man.” That opinion he continued to entertain, and has expressed it clearly in his testimony. We have not only the benefit of Dr Begbie's opinion, which is of great value and great authority, but we have real evidence of the clear and firm character of that opinion in the fact that Dr Begbie signed the deed as an attesting witness on the 2d February 1870. He had had previous conversations with Major Nisbet on the

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