BANKS
V.
GOODFELLOW

SIR ALEXANDER COCKBURN CJ:

(read the following judgment of the court)

This is an action brought by the plaintiff, as heir-at-law of John Banks, to try the validity of a will made by the latter in favour of one Margaret Goodfellow, of whom, she having died since the decease of the testator, the defendant is the heir. The question in issue at the trial was the capacity of the testator to make a will. Instructions for the will taken by the attorney who prepared it were signed by the testator and attested by witnesses in his presence on 2 December 1863. The will formally prepared from such instructions was duly executed on the 27th of the same month. The question is whether on both or either of those days the testator was of sound mind so as to be capable of making a will.

It is a fact beyond dispute that the testator John Banks had at former times been of unsound mind. He had been confined as far back as the year 1841 in the county lunatic asylum. Discharged after a time from the asylum, he…