WILL CONTESTS 
By WALTER E REX Escl 
Formerly Register of Wills for the City and County of Philadelphia 
Read before the Medical Jurisprudence Society February 8th 1887 
PRINTED BY THE SOCIETY WILL CONTESTS. 
By WALTER E. REX, Esq., 
Formerly Register of Wills for the City and County of Philadelphia 
It will be impossible, if indeed not inappro- 
priate for the purposes of this paper, to attempt 
to do more than to suggest a few leading thoughts 
that naturally arise in the discussion of this sub- 
ject. The title may be misleading, for, in order 
to speak of the principles bearing upon the 
question of the amount of mental capacity 
required to make a valid will, it will be necessary 
for me to carry you away, at first, from the 
scenes of strife, with their accompanying dis- 
plays of eloquence, which the title suggests, and 
to lay before you some facts and elementary 
principles concerning wills and who may make 
them. 
A will is defined to be the legal declaration of 
a man’s intentions concerning the disposition of 
his property after his death. 
In England,wills of personal property, or goods 
and chattels, were of very ancient origin ; but a 
testator could only dispose of one-half or one- 
third, according as he left only a wife, or a wife 
and children, who were entitled to their “reason- 
able parts,’’ as they were called. 
The power to devise land by will was given 
by statute in the time of Henry VIII, although 
it is said to have existed before the Conquest. It 
originated in the fertile minds of the ecclesias- 
tics, who were desirous of adding to the wealth 
and power of the Church ; they separated the 
use of land from the land itself, and made the 
use the subject of devise, while the land was 
not. This caused the passage of a statute an- 
nexing the use to the land, and this was shortly 
followed by the statute of Henry VIII above 
mentioned. 
Among the ancient Athenians, there was no 
law giving the right to dispose of property or 
lands by will, but they descended to children 
and in default of these, to collateral heirs. The 
object of this custom was to prevent inequality 
of wealth, and to promote its more general dis- 
tribution. 
In Germany, it was for a long time disputed 
whether property should go to the children of a 
decedent, or to his parents ; and, in order to de- 
cide the question, about the middle of the tenth 
century a trial by combat was ordered, which 
resulted in a victory for the champions of the 
children. 
After wills became a recognized and legal 
method of disposing of property, there were still 
several classes of persons who were not allowed 
to make them—viz., married women, infants, 
idiots and persons of non-sane memory. 
The laws of our State, however, have, since 
the year 1848, removed this disability from 
married women, but the other classes still remain 
under it. 
The object of this paper is to deal with the 
class last above named—mainly, however, with 
reference to the amount of mental capacity 
required to make a valid will. 
Of course, if the persons denominated as 
idiots and of non-sane memory were openly and 
notoriously in a condition requiring treatment 
and confinement for their mental troubles, there 
might be little or no difficulty in determining the 
validity of their testamentary dispositions. But 
it is rarely in these cases that the legal machin- 
ery of the courts is called into use. 
The cases over which the most vigorous con- 
tests arise are those where the testator lived and 
moved among his companions and friends, at- 
tending to his daily duties, riding his hobbies, 
growing close and peculiar, perhaps, with ad- 
vancing years, and when at last overtaken by 
death and his will is read, immediately a contest 
is begun by disappointed relatives and friends, 
on the grounds of “ want of mental capacity ” 
and “ undue influence.’' 
It would be most singular and unaccountable 
(if we did not recognize avarice, envy and dis- 
appointment as the inducing causes) that men 
who are looked up to in the business world, 2 
whose judgment is consulted, who are respected 
and honored, and of whom no suspicion of 
mental unsoundness was ever breathed, should 
immediately after death have their private 
actions brought to light and scrutinized, their 
conversations distorted, and their peculiarities 
magnified, in the effort to discover something 
of which the law may take hold, and by means 
of which their testamentary wishes may be pro- 
nounced void. 
This brings me to the point at which I may 
consider the subject in two aspects ; one, the 
common or popular idea of what constitutes 
mental incapacity ; and the other, what the law 
regards as such. 
Briefly as to the first, Disappointment (con- 
cealed, of course) is usually the moving cause 
for a contest. If an estate is not properly and 
equitably divided among those who feel them- 
selves entitled to it, or an expectant legatee is 
passed over with a small gift, or perhaps with 
none at all, or the estate is left entirely to stran- 
gers or to charity, then the expectant beneficiary 
falls a prey to his feelings, and seeks for proofs 
of insanity of the decedent. 
Then woe betide the unfortunate testator who 
has ever talked to himself on the street or in 
the house, or mumbled incoherently and gesticu- 
lated to himself; who ever gave way to fits of 
temper, or refused to answer questions at times 
as though he did not hear, or only answered 
in monosyllables ; who had lost or failing mem- 
ory on many things ; who disliked society ; who 
did not recognize people on the street, and 
seemed to forget old friends and relatives ; or 
who dressed poorly and meanly when he could 
do better; or who grew thin and emaciated as 
old age crept over him. 
Any one or more of these facts, proven by a 
host of witnesses (and they can always be ob- 
tained), are sufficient, in the popular mind, to 
brand the decedent as unfit to dispose of his 
own estate. These witnesses always believe, 
and so testify when asked for their opinion upon 
facts such as the foregoing, that the testator was 
out of his mind, was unsound, was unfit to 
make a will, was crazy. 
In one case, a woman who had been a cook 
all her life, and had accumulated a small estate 
by industry, savings and gifts, left it all to a 
church friend who had been kind to her in her 
last years. Her relatives, who had not gone 
near her for five years, contested the will. They 
testified to her ungovernable temper, her queer 
ways and penurious habits ; but the crowning 
testimony showing her insanity was, that when 
she visited her relatives some years before the 
will was made, she refused to eat the bread and 
butter they gave her, and said it was bad, when 
they knew it was good, for they made it. 
In another case, a son testified that his father 
was a raving maniac, because, among other 
things, he told the son he had been drinking. 
This accusation the son stoutly denied, but, as 
the father could not return to life and give his 
version of it, I could not help feeling that there 
was, perhaps, a scintilla of truth in the dece- 
dent’s statement. 
In nearly every contest, some of the above 
enumerated actions and conditions of body and 
mind are testified to, and adduced as evidences 
of unfitness to make a will. 
In some instances, men who have not hesi- 
tated to deal with the decedent in his lifetime, 
and make business contracts with him, have 
been produced to testify to some of the actions 
and conditions above mentioned, and from them 
have given as their opinions that the testator 
was not fit to make a will. 
A woman left her small estate to her husband 
for life, and after his death to charity, and cut 
off entirely a son whom the testimony showed 
to be worthless and ungrateful. Two men had 
signed as witnesses when the will was executed, 
and yet both testified that the woman was of 
unsound mind, although they said she knew 
what she was doing when she signed the will, 
and had asked them to witness it. 
Upon cross-examination, it appeared that they 
based their opinion of her insanity solely upon 
the fact that they learned, after witnessing the 
will, that she had disinherited her son. 
Nor is a man entirely safe, even when he ob- 
tains a physician as a witness. An old gentle- 
man, who for many years had successfully 
conducted a manufacturing business, made his 
will very carefully. He afterward suffered from 
a stroke of paralysis, and was laid aside for a 
few months. Recovering, he attended to busi- 
ness as usual, and then added a codicil to his 
will, which was witnessed by two persons. He 
then took the codicil to his physician, a well- 
known practitioner, who wrote below the attest- 
ation clause that he considered him to be a man 
of perfectly sound mind. 
The will and codicil favored several unmarried 3 
daughters more than a son and married daughter, 
and gave good reasons for the discrimination. 
After his death, his will was hotly contested for 
more than a year ; and testimony showing fail- 
ing memory, absent-mindedness, business mis- 
management, queer remarks and actions, was 
produced, to prove his mental incapacity; but, 
nevertheless, the will was sustained and probated. 
These are a few of many instances which I 
might cite for the purpose of illustrating my first 
point—the popular idea of mental incapacity. In 
the judgment of the class of persons here alluded 
to, an old and well-known adage would be more 
nearly correct if it read : “ Where there’s a will 
that don’t suit us, there ought to be a way to 
break it.” 
Fortunately, the interpretation placed by the 
courts upon what is necessary to constitute 
soundness of mind in the making of wills is very 
different from theirs. And although it is im- 
possible to prevent contests on this ground 
under our laws and practice, yet the number of 
contests is small in proportion to the number of 
wills probated, and the number of wills set aside 
is very small indeed in proportion to the con- 
tests, as I will show you later on. 
The general principle enunciated by the 
Supreme Court is that “ A man of sound mind 
and disposing memory is one who has a full and 
intelligent knowledge of the act he is engaged 
in, a full knowledge of the property he pos- 
sesses, an intelligent perception and understand- 
ing of the disposition he desires to make of it, 
and of the persons and objects he desires shall 
be the recipients of his bounty ; ” i. e., Did he 
know what property he had ? Did he know how 
he wanted to dispose of it ? Did he know who 
his beneficiaries were ? 
The main question in such a controversy is 
whether the testator’s mind and memory were 
sufficiently sound to enable him to know and 
to understand the business in which he was 
engaged at the time when he executed the will. 
Merely imperfect, or impaired memory, or 
personal peculiarities and eccentricities, or 
habits and actions which have grown upon a 
man and are foreign to his former nature, are 
not of themselves sufficient to make out a case 
of mental incapacity. Neither age, nor sickness, 
nor extreme distress, nor debility of body, will 
affect the capacity to make a will, if sufficient 
intelligence remains. 
A case which to the popular mind would seem 
to embody all the essentials of incapacity to 
make a will was decided by the Supreme Court 
in 1882 ( Wilson v. Mitchell, 5 Outerbridge, 495). 
The testator was over 100 years old when he 
made his will. He had a paralytic stroke about 
ten years before his death. He was blind, 
had impaired hearing, his mind acted slowly, 
he was forgetful of recent events and names, he 
repeated questions in conversation, he slept 
constantly, and was bewildered when aroused 
suddenly. He became filthy and even obscene 
in his habits, although formerly very particular 
and correct. 
Many who knew him, on account of these 
changes which they observed in him, testified 
that he did not have capacity to make a will. 
And yet the testimony of the witnesses to the 
will, and of others, showed so conclusively that 
he knew what he was doing at the time he 
executed his will, that the court withdrew the 
question of testamentary capacity from the jury, 
and the Supreme Court affirmed the judgment. 
Many cases like this might be cited, but the 
principle is the same in all. A great safeguard 
thrown around wills is that the evidence of 
mental incapacity must be such as would satisfy 
the judge, and warrant him in allowing the jury 
to pass upon it. The subscribing witnesses to 
a will are permitted to state their opinions of 
the soundness of mind, etc., of the testator, 
without giving facts on which such opinion is 
based; but no other person (who is not an ex- 
pert) can give such opinion without first stating 
the facts ; and even then, the question whether 
the facts testified to justify the opinion given, 
and entitle such opinion to go to the jury, is for 
the court alone to decide. 
The test to be applied in such case is whether 
the evidence is sufficient and of such character 
for the court to sustain a verdict against the 
will; if it is not, then the judge must withdraw 
the question from the jury ; it would be error in 
him to allow the jury to pass on it, and he alone' 
must decide the question of its sufficiency. 
Again, the facts testified to, as showing inca- 
pacity, must have happened at or about the 
time of the execution of the will. 
It is not sufficient to relate incidents which 
transpired long before or long after the signing ; 
neither exhibitions of mental weakness nor 
paralytic strokes at some remote period will, of 
themselves, change the presumption of sanity. 
A man is presumed to be sane until the contrary 4 
is proved, and testimony of the nature herein- 
before mentioned will not constitute such proof. 
Another frequent cause of contest is the alle- 
gation of undue influence. If the testator is 
proved to be a person of very weak mind, much 
less proof of undue influence is required to 
make out a case. But in ordinary cases, to 
establish undue influence requires proof of 
fraud, threats or misrepresentations, undue 
flattery, or physical or moral coercion, so as to 
destroy the testator’s free agency. It must be 
such as would subjugate the mind of the testa- 
tor to the person operating on it. 
The influence of a wife or children is not un- 
due ; nor is importunate persuasion from which 
a delicate mind would shrink. And no evidence 
of influence is sufficient which is not shown to 
exist at the very time of making the will. In 
this, also, as in mental unsoundness, the court 
is the judge whether the evidence is sufficient to 
show undue influence, and it is error to allow the 
jury to decide the question of its sufficiency. 
A leading case on this branch of the subject 
(Tawney v. Long, 26 P. F. S., 115), which was 
decided a little over ten years ago, presents 
some interesting facts. 
The decedent was 86 years old when he 
made his will, and died the following year. He 
bequeathed $200 to a nephew, and the balance 
of his estate to a nephew of his wife, whom he 
made his executor. 
The testator had separated from his wife, who 
sued for maintenance, which was granted by the 
court. After his death, his will was contested 
by his daughter and her husband, and they con- 
tended that the will was made under the in- 
fluence of the executor, with whom the dece- 
dent lived. The testimony produced by the 
contestants was to the effect that the executor 
helped the decedent in his litigation, went with 
him to his attorney, attended to his business, 
importuned him frequently to make a will in his 
favor. Also that the testator had insane delusions 
about his wife, and was influenced to believe 
that she maintained improper relations with his 
son-in-law, that his daughter (the contestant) 
was not his child, and that both his wife and 
daughter were improper characters. 
The judge who tried the case submitted the 
question, whether this evidence was sufficient 
to raise the presumption of undue influence, to 
the jury, who found that it was. But the Su- 
preme Court reversed the judgment, saying that 
the evidence was wholly insufficient, and should 
have been rejected. 
From a consideration of these principles we 
can see that wills are much safer than is popu- 
larly supposed ; they are not altogether left to 
the ignorance or prejudice of juries, but are 
protected by the courts, which can apply to each 
case the principles governing it, and which form 
inflexible rules for a certain given state of facts. 
It is often stated that there is not much use 
in making wills, for they are so easily broken. 
As I have said before, it is not possible to pre- 
vent contests under our present laws, any more 
than it is possible to prevent an innocent man 
from being charged with a crime. But to make 
a successful contest is a different matter. 
In the years 1883, 1884 and 1885, there were 
probated by the Register of Wills in this county, 
3971 wills, an average of 1324 per year. In the 
same time there were 66 wills contested, an av- 
erage of 22 per year. Out of this total number 
of contests only 6 were set aside, and refused 
probate, making a proportion of 1 to 11 in the 
total contests, and 1 to 662 in the total of probate. 
Of these six (6) cases, two showed undoubted 
evidences of mental unsoundness, and all 
parties in interest joined in the request to set 
them aside; a third was a married woman’s 
will, which had but one witness beside her hus- 
band (the law excluding him from being a wit- 
ness in such case); a fourth was decided upon 
the testimony of the subscribing witnesses, 
which showed insanity, and there was no further 
effort made to probate it; and the remaining 
two were set aside upon the evidence, after a 
long and bitter contest. 
There were only four cases in which issues of 
fact were sent to the Common Pleas Court to 
be tried by a jury. The remaining 56 contested 
wills were admitted to probate. Appeals were 
taken to court in 16 of these, but in no case, as 
far as I can learn among those disposed of, has 
the will been set aside by the court. A number 
of the 66 contested cases were small, and were 
settled in a very short time; in some others, 
there was no contest before the Register, but 
appeals were taken, in order to have the cases 
heard by the court, and to obtain testimony 
which could not be produced before the Regis- 
ter. The majority of contests lasted only a few 
months ; 3 or 4 occupied over a year, and one 
case began in May, 1883, and was ended in 
December, 1885. 5 
And now the question naturally presents itself, 
Is there any remedy or preventive for contests, 
that ought to be suggested, which could receive 
legislative sanction ? People say that even the 
wills of eminent lawyers, carefully drawn by 
themselves, are attacked, whether success- 
fully or not, they do not stop to consider. 
Among others, we have read that the will of 
Samuel J. Tilden, although probated, is the 
subject of a contest before the court. Would 
it be advisable, in view of the expense entailed 
and of the delays and inconveniences of such 
contests, limited in number though they be, 
that some legislation should be enacted by 
which legal safeguards could be thrown around 
wills made with certain formalities ? 
In France, I believe, a will is drawn and 
executed before a notary (a different person 
from our notary) and left with him, and after 
death is carried into effect, no other probate 
being necessary. In New York, a year or two 
ago, a bill was introduced into the Legislature, 
providing for ante-mortem probate of wills, but 
it did not become a law. At that time some 
newspaper discussions took place here about it, 
and the opinions of a number of persons were 
taken as to the advisability of such a law. 
It has been suggested that a law might be 
passed enabling a testator to notify his relatives 
that he was about to make his will, and without 
disclosing its contents to ask them to pass upon 
his sanity. 
Another suggestion is, for all wills to be for- 
mally executed and acknowledged before some 
officer authorized to perform such a duty. In 
view of the fact, however, that some persons 
have a mania for making wills and codicils, 
and others find it desirable and necessary to 
make alterations to meet the requirements of 
changed surroundings and circumstances, there 
might be some difficulty in deciding upon any 
plan which would give less trouble than the 
present system. 
These few suggestions have been thrown out 
for thought and discussion ; and in thus con- 
cluding this paper, I will only add that, whether 
discussed here or pondered over hereafter, I 
will not consider the treatment of the subject 
as entirely valueless, if, from the principles of 
law laid down, and the facts and figures col- 
lated, any of us are induced to believe in the 
advisability of preserving through life a “ Mens 
sana in cor pore sano."