The question in this case was as to the capacity of a testator at the time of making a codicil to his will. The superior court decided that the appellees, who were the parties claiming under it, were bound to go further in their proof, than merely to prove the execution of the codicil; and that, without some evidence of capacity, the law did not presume it, as in the ordinary case of a party who executes a deed, or other contract.
This decision was in conformity to the uniform practice in this state, where the question has arisen in cases regarding the validity of wills. Upon this ground the court held, in the case of Comstock v. Hadlyme, 8 Conn., 254, that the party claiming under a will, takes upon himself the burden of proof, and may therefore open and close the argument; and the court .say, that he must not only prove that the will was formally executed, but that the testator was of sound and disposing mind. This decision is in conformity to cases in Massachusetts and Maine, where it is not only held that the parties claiming under a will go forward, but that they are bound to give evidence of capacity. In Brooks v. Barret, 7 Pick., 94, it is held, that where a will is opposed on the ground of the testator’s insanity when it was executed, those who insist on its probate, have the burden of proof in the first instance, and after they have proved the sanity of the testator, by the subscribing witnesses, the burden will be shifted on the other party to prove insanity. See also Cilley v. Cilley, 34 Maine, 162. Gerrish v. Nason, 22 id., 435.
It is undoubtedly true that there are conflicting decisions on this point; and it may be said that our practice is in conflict with the principle that a party is presumed to be capable of performing any legal act. But the making of a will is of so much importance, and is so often, not to say so generally, done under circumstances of great bodily debility, likely to produce more or less mental derangement, that the statute has very properly required three witnesses to the making of *23a valid will; and these witnesses, it is said, are thrown around a testator to prevent any imposition from being practiced upon him. Whether the statute of wills is an enabling act, under which a party must show that all its requirements have been complied with, in order to establish a claim under it, as claimed by the appellant’s counsel, we do not deem of very great importance. It is true that its phraseology is such as seems to countenance this idea. It provides that all persons of sound minds may make wills. But this language, in connection with the important character of the act itself, and the solemnity required in the execution of a will, is sufficient to account for the practice of requiring proof of capacity, without reference to the question whether the statute is, or not, an enabling act; and considering the circumstances under which most wills are made, and the importunity likely to be practiced upon persons in their last moments, we think there is reason enough for the practice, without resorting to any argument derived from this consideration, whether it be well founded or otherwise. We do not therefore advise a new trial.
In this opinion the other judges concurred.
New trial not advised.