Sarepta Hix vs. Isaac Whittemore, 4 Met. 545

Dewey, J. Every man being presumed to be sane, till the contrary is shown, the burden of proof certainly rests, in the first instance, on the party alleging the insanity. How far this burden is changed by the mere fact of proof of insanity at a particular period is the precise point of the present inquiry. The general expressions, in some of the books that treat of the subject, are certainly broad enough to warrant the instructions given in the present case. See 3 Stark. Ev. 1709. Greenleaf on Ev. § 42. Mathews, on Presump. Ev. (Amer. ed.) 20, 21.

But a careful analysis of the principles, upon which presumptions are allowed to have force and effect, will show' that the proof of the insanity of an individual, at a particular period, does not necessarily authorize the inference of his insanity at a remote subsequent period, or even several months later. The force of presumptions arises from our observation and experience of the mutual connexion between the facts shown to exist and those sought to be established by inference from those facts.

Now neither observation nor experience shows us that persons, who are insane from the effect of some violent disease, do not usually recover the right use of their mental faculties. Such cases are not unusual, and the return of a sound mind may be anticipated from the subsiding or removal of the disease which has prostrated their minds.

It is not, therefore, to be stated as an unqualified maxim of the law, “ once insane, presumed to be always insane ; ” but reference must be had to the peculiar circumstances connected with the insanity of an individual, in deciding upon its effect upon the burden of proof, or how far it may authorize the jury to infer that the same condition or state of mind attaches to the individual at a later period. There must be kept in view the distinction between the inferences to be drawn from proof of an habitual or apparently confirmed insanity, and that which may be only temporary.

The existence of the former, once established, would require proof from the other party to show a restoration or recovery ; and in the absence of such evidence, insanity would be presumed to continue. But if the proof only shows a case of insanity directly connected with some violent disease, with which the individual is attacked, the party alleging the insanity must bring his proof of continued insanity to that point of time which bears directly upon the subject in controversy, and not content himself merely with proof of insanity at an earlier period.

Such we take to be the rule, as founded in reason and sanctioned by the decided cases. Thus in Cartwright v. Cartwright, 1 Phillim. 100, it was held that “ where habitual insanity in the mind of a person is established, there the party who would take advantage of the fact of an interval of reason must prove it ”; taking the distinction which we have mentioned. 1 Williams on Executors, 17, 18. Swinburne, in his Treatise on Wills,

Part II. Sect. III., states the general presumption of law, that a testator, who is proved to have been void of the use of reason and understanding, continues in the same state. But, among other exceptions to this rule, he mentions the case of a testator’s falling “ into some frenzy, upon some accidental cause which is afterwards taken away.” And this exception is recognized in 1 Collinson on Lunacy, 55, and Shelford on Lunatics, 275. Lord Hale says accidental madness proceeds sometimes from the violence of a disease. 1 Hale P. C. 30. Mew trial granted.