58 A. 665
Pa.
1904

Opinion by

Mb. Chief. Justice Mitchell,

Thе Act of June 25, 1895, P. L. 300, is in pari materia with the lunacy acts, and should receive a construction upon the same general lines. It is entitled “ An act for the protection of persons unable to care for their own property,” and establishes а legal status or condition, intermediate between normal mental capacity and insanity or idiocy, a state of wеak or enfeebled mind, neither mens sana nor non compos mentis. This is a condition ‍‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌​‌​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌​​‌‌​​​​‍previously recognized in the law in regard to the* question of undue influence in the making of wills, now established by this statute in regard to the power of contract and of general management of estate and affairs—a dangerous statute easily capable of abuse by designing • relativеs to accomplish the very wrong intended to be guarded against, and therefore to be administered by the courts with the utmost caution and conservatism.

The difficulty in the case which probably misled the learned judge below was that the claims of both parties are extreme, and neither can be sustained in its entirety. The testator was decreed to be of feeble mind аnd incapable of managing his affairs in December, 1902, and made the codicil to his will which is the cause of contention here in April, 1903. Appellant relying on the literal wording of section 5 of the act that after the decree “ the said persоn shall be wholly incapable of making any contract ‍‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌​‌​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌​​‌‌​​​​‍or gift whatever or any instrument in writing,” contends that the codicil is ipso fаcto void as a matter of law and must be totally disregarded. The proponents of the codicil on the other hand contend that as there is no expressed intent to repeal the provisions of the Wills Act, the words “any instrument in writing ” do not include а will, and the codicil is prima facie valid, and there being no evidence that the testator was non compos when hе executed it, it must stand without further contest.

Neither position is altogether sound. Section 7 of the act provides that “ if at any time after the decree .... the party .... shall become able to care for his property, he or any of his family mаy present a petition ‍‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌​‌​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌​​‌‌​​​​‍to the court setting forth such fact,” and after hearing the court may so decree and dischаrge the guardian, etc. This is an express provision for setting aside the decree and restoring the status of contractual *360capacity during the lifetime of the party, but it is not exclusive of the ordinary rights and proceedings in regard to wills. The will of Edward Hоffman was made before the decree of incapacity against him. But that would not prevent a contestant from showing that he was non compos when he made it. And on the other hand the making ‍‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌​‌​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌​​‌‌​​​​‍of the codicil after the decree would not bar the parties from showing that he was of sound disposing mind when he made it. The contention of appellant therefore that the death of Hoffman without any revocation by the court of the decree of incapacity closed all inquiry on that subject is too broad and cannot be sustained.

On the other hand the claim of the appellees is equally untеnable. As already said, this act and the lunacy act of 1836 are in pari materia and must receive a similar construction. Neither takes away the right and power of a sane man under the act of 1833 to make a will, but an adjudication by inquest or dеcree under either, raises a presumption of incapacity which can only be overcome by evidencе of restoration of mental faculties or at least of lucid interval. The intent of both statutes was the same, the protеction of the person and property of those not able to do it for themselves, and especially in the cаse of the act of 1895 to prevent the party’s estate from being squandered by him or unfairly obtained from him by designing persons, and tо preserve it for him during his life and his family afterwards. It would defeat the larger part of the intent ‍‌​‌‌​​‌​​‌​‌‌​‌‌​‌‌​‌​​​​‌​‌‌‌‌‌‌​​‌‌​‌‌​​‌‌​​​​‍of the act to hold as we arе asked to do that a man was incapable of making a sale of a ten dollar cow even for its full value, and yet capable of disposing of his entire estate by will. Whatever the difference in capacity required between a contract and a will, the latter is an “ instrument in writing ” and prima facie within the prohibition of the statute, and if made during the existence оf a decree, the presumption against its validity can only be overcome by satisfactory evidence of restоration of capacity. The present case is an illustration of the danger of any other construction. It comes with bad grace from a daughter who had her father adjudged incapable in December, to present a codicil fаvorable to herself made by him in the fallowing April and claim validity for it without any evidence at all of a change of mentаl'condition between times.

It is argued by appellees that it was admitted by the appel*361lant that the testator was of sound, mind, and the learned judge below based his opinion partly on the absence of a specific averment in appellant’s petition, that the testator was incompetent to make a will at the date of the codicil. He accordingly treated the question as one of law only, whether the dеcree of weak mindedness was conclusive of incompetency. But there was in fact no admission by appellаnt of soundness of mind, and as already said the judge was probably misled by the appellant’s extreme contention. The decree of weakness of mind was not conclusive as appellant argued, but it did raise a presumption which has not been met. The proof by the witnesses to the codicil was of the ordinary formal kind for purpose of probate and wholly insufficient to overcome the existing presumption under the decree.

The decree is reversed at the costs of the appellees, and the record is remitted with directions to revoke the probate of the codicil and award an issue devisavit vel non as to said codicil, in which the proponents shall be plaintiffs and be charged with the burden of proof.'