Testamentary Capacity in the 19th Century

Robert E. Mensel (Associate Professor of Law, Charleston School of Law) has recently published his article entitled Right Feeling and Knowing Right: Insanity in Testators and Criminals in Nineteenth Century American Law, 58 Okla. L. Rev. 397-437 (2005).
   

Here is Prof. Mensel’s conclusion:
   

The contrast between judicial treatment of insanity in criminal prosecutions on the one hand and will contests on the other illustrates the law’s resistance, and partial yielding, to the sentimentalizing trend in nineteenth century American culture. To the extent that ideas about personhood were implicit in the jurisprudence of insanity, it appears that personhood was fragmented and contested. The fact that the debate was consistently framed in the terms of faculty psychology suggests that fragmentation was thought to be a fundamental characteristic of mind and therefore of personhood. This assumption was widely accepted in the legal literature throughout the century. Persons were assembled of discrete parts, any one of which could be defective, or could malfunction temporarily.
   

In the particular context of the criminal law, most judges and physicians held tightly to the older, intellectual standard of insanity. The reform movement, expressed specifically in this context in the work of Isaac Ray, Charles Doe, John Edmonds, and Lemuel Shaw made a strong challenge at mid-century. But its adherents were dismissed as “visionary theorists and sentimental philosophers,” and their position was ultimately rejected by century’s end. It remained thereafter a small minority view.
   

When insanity was raised to attack the testamentary capacity of a decedent who had disinherited the natural objects of his or her bounty, the courts took a very different approach, based on a different faculty of mind. They incorporated in the standard of sanity the ability to feel the obligations of family. This standard relied upon the notion that there was a proper configuration of feelings, the absence of which could render a person insane, or invalidate the will of a person otherwise sane. Persons who were clearly sane for purposes of the criminal law might be insane under this standard. The natural objects could be disinherited if they had behaved toward the testator in a manner deemed unnatural. This typically involved conduct that violated the obligations of affection and kindness that also characterized the emotional function of the middle class family. In such circumstances, where the natural objects had violated the domestic ideal of the family, the testator’s action appeared justifiable, and therefore sane.
   

Sentimentalism, the cult of domesticity, the jurisprudence of the heart, whatever one might call the cultural imperative underlying the law of insanity in wills, triumphed in this area of nineteenth century law. But its triumph was incomplete, and the law remained divided over the role of sentiment and emotion in the configuration of legal rights and responsibilities, and the definition of full and competent legal personhood.