The motion to set aside the verdict in this case, as against evidence, &c., not being accompanied by the required report of the evidence adduced, must be overruled. The exceptions only are properly before us for consideration. We proceed to consider them seriatim, (in the order adopted by the plaintiff’s counsel in presenting his argument upon them to this Court,) premising only that, in order to entitle himself to a new trial by means of exceptions, *270the excepting party must see to it that he brings before us so much of the case, as it arose at nisi jprius, as to make it apparent, not merely that the ruling complained of might be erroneous in some hypothetical case, but that it was so as applied to the case actually presented by the'testimony, and that the error was of such a character as to affect his rights injuriously.
1. The demandant having put in the record óf a decree of the Probate Court, passed on the 3d Tuesday of April, 1834, appointing a guardian to Stephen Neal, the tenant offered the record of the same court, showing the removal of said guardian on the 1st Tuesday of September, 1834, upon his own petition, alleging that, " within a few months, the bodily and mental powers of his ward have very much improved, so that he is believed to be capable of managing his own affairs and taking care of himself, which he is desirous to do that " his improvement in his health and general condition is apparent to all his friends, who are not only willing but desirous that he should now be relieved from legal disability, under which he has been placed, and should have once more the absolute control of his person and property.” The record further sets forth that, " upon this petition and representation, the facts therein stated being fully jproved,” the guardian was removed.
The exceptions state that the demandant "objected to this record as evidence of said Neal’s restoration to sound mind, because it does not show notice of the proceedings to Lydia Dennett, his grantor, the then presumptive heiress of said Neal; but did not object to it as evidence of the removal of the guardian, and that said Neal was without a guardian at the time of the execution of the de'ed under which the tenant claims.” Upon the statement of tenant’s counsel that he did not offer it as evidence of said Neal’s restoration to a sound mind, the Judge allowed it to be read. Thereupon the demandant’s counsel requested the Court to rule that the burden was upon the tenant to prove the restoration of Neal to a sound mind subsequent to the appointment of a *271guardian, and prior to the date of the deed under which he claimed, but the Judge declined so to do, remarking, that he " did not feel called upon to determine at this stage of the proceedings, whether or not the demandant had made out a case.” This refusal forms the demandant’s first ground of complaint, and is coupled by his counsel, in argument,with the subsequent refusal to give, in the terms requested, his 10th and 11th requests for instructions, which relate to the effect of these records as evidence. Even if it were clear that the requested instructions could be rightfully claimed when the case was committed to the jury, it would still be very certain that the interposition of such a ruling in the progress of the trial, at the request of a party, would be purely matter of discretion with the presiding Judge, and the refusal of it before the completion of the case would be no ground for exceptions. The Judge cannot be required to rule upon the force and effect of every piece of testimony upon the position of the parties as it is produced; he is under no obligation to make known his views of the relative condition of the parties as to the burden of proof at every stage of the proceedings. It is sufficient if he gives the right direction to the cause when a party has announced that his case is complete. We are to inquire, then, whether the demandant was justly aggrieved in the matter of his 10th and 11th requests. Without stopping to determine as to the correctness of the rulings requested, it is plain that the demandant has no cause of complaint if those actually given were substantially equivalent. Dunn v. Moody, 41 Maine, 240. Now the case finds that " the jury were instructed that the record of the original decree of guardianship of April, 1834, was conclusive evidence that in that case it was fully proved to the Probate Court that Stephen Neal was then non compos mentis and incapable of taking care of himself, — that the record of the removal of the guardian in September, 1834, was introduced and received only as evidence of the removal of the guardian, and not as evidence of the restoration of said Neal to a sound mind, and *272that it was not competent for them to consider it except for the purpose for which it was received.” The instruction that " the law presumes every man sane and of sound mind until the contrary has been proved,” — that the " law presumes that Stephen Neal was a sane man and of sound mind; and if the plaintiff would avail himself of the fact of unsoundness of mind he must prove it, — the burden is upon him to overcome the presumption by proof,” if applied to the position of the parties at the commencement of the trial, was unquestionably correct. That it was so applied, and must have been so understood by the jury, appears from the succeeding instructions, as follows : — "The particular time in question is when the deed was signed and delivered. Acts occurring before and after are only evidence tending to show the mental condition then; if the plaintiff has shown that Stephen Neal was, at any time during the years 1833, 1834, or 1835, of unsound mind, the law presumes it continued down as late as the signing and delivery of the deed unless the proof shows the contrary.” Taken in connection with the previous instructions as to the force and effect of the records of the Probate Court, this certainly leaves the plaintiff nothing to complain of, although the presiding Judge did not see fit to adopt the precise words used in the tenth and eleventh requests for instructions.
2. Dr. Harlow, a witness.called as an expert by the demand-ant, having testified in his examination in chief, in answer to several hypothetical questions put by plaintiff, involving facts claimed by plaintiff as proved and facts anticipated in defendant’s proof, to his opinion that Neal was of unsound mind and that it was a marked case of senile dementia, and having given some testimony as to the character of the disease, was asked, on cross-examination, "whether, taking all the facts on both sides to be proved, was or not, in your opinion, Stephen Neal, on the 27th day of July, 1835, of so unsound a mind as to be incapable of transacting the ordinary business of life?” The question was objected to as *273involving a question of law. If we assume that the. question was improper and inadmissible, even on cross-examination, as tending to mislead or to draw from the witness an expression of opinion upon a question of law, still, upon looking at the answer, it is not perceived how it could have been in any manner prejudicial to the demandant. The witness says, — "I cannot draw the line how unsound the mind must be to render a man legally incompetent to do business. But I shpuld say he was of unsound mind and a fit subject for a guardian, but I can’t say whether he was capable of transacting ordinary business or not.” The only thing definite elicited by the question was a repetition of the opinion previously expressed, adverse to the tenant and in more emphatic terms, and applied to the very date of the transaction in controversy. A new trial will not be granted on account of the permission of an improper question, when it is manifest that the answer could not have prejudiced the excepting party. To sustain exceptions for such a cause would be more nice than wise.
3. The next subject of complaint is the exclusion of an original paper bearing the signature of Stephen Neal, dated Oct. 29, 1835, and purporting to be his last will and testament, the body of it being in the handwriting of Neal Dow, his former guardian, which was offered "as proper evidence to go to the jury, as an insane act and to prove an unsound state of mind.” The reason assigned for offering this document as evidence of Neal’s insanity, is that in and by it the principal part of his property is devised away from his daughter, an only child, to whom there was evidence tending to show that he was very much attached at a period some three years earlier than the date of these transactions. Why it was excluded is not stated in the exceptions. The tenant’s counsel suggests that the daté of the paper is three months later than the date of the deed, and that whether acts of Stephen Neal offered in evidence are sufficiently near in point of time to bear upon the act in question is a question addressed to the discretion of the presiding Judge and *274not subject to exception. But it would seem that Neal’s acts nearer the close of his life, and more remote in time from the giving of the deed, were offered and admitted in evidence, so that this can hardly be considered as the ground of the exclusion. They further suggest that the body of the' paper was not in Stephen Neal’s handwriting, and that there is no proof that it was drawn up by his authority or that he knew its contents. But it might be fairly argued that the execution of such a paper, under such circumstances, would afford no slight evidence of a demented condition. One of the counsel says there was no proof of the signature, but this contradicts the exceptions, which describe the document as an original paper bearing Neal’s signature. It is plain that the true reason for the exclusion was none of these. It may be found in the character of the document itself. Kemoteness in the time of the act is not the only remoteness from the issue between the parties, which may be, in the discretion of the presiding Judge, a proper ground for excluding evidence of the acts of the person whose state of mind is in question. The sole ground of offering this paper as evidence of insanity is that Neal’s nephew, instead of his daughter, is made residuary legatee in it. But while it is apparently drafted by one not learned in the law nor accurate in the use of legal terms, there is nothing fantastic or absurd in its terms. Quite a number of bequests to relatives and friends are set forth in an orderly manner, —provision is made for his wife in addition to her dower, and reasons are duly and carefully assigned for preferring his nephew to his daughter, in the residuary clause, which, if based upon actual facts, might, to many sane minds, seem to justify that disposition. It is plain that, in and of itself, without first raising and settling many collateral issues, the act is not oiie from which any safe inference as to the state of Stephen Neal’s mind could be drawn. There must be a limit somewhere in the discretion of the Court, even in the prosecution of an inquiry taking so wide a range as this. Jf such.evidence did not tend to prejudice and mislead the *275jury, at least it would be likely to consume much time to very little purpose. We think it was rightly excluded as too remote and uncertain in its character, and opening too many collateral issues of inquiry, which the tenant could not "be expected to be. prepared to meet.
4. The next objection is, that the tenant was allowed to testify that he paid a valuable consideration for the land in dispute, and was ignorant of any defect in the title. When this case was last before this Court, (53 Maine, 451,) it was determined that an insane person has not the power to convey an indefeasible title, and does not convey such title, even to a man dealing with him in good faith and paying an adequate consideration, and that, if the deed has never been ratified, the heir of such insane person may avoid it without returning the price, not only as against the immediate grantee but as against remote purchasers deriving their title through him, who have paid the full value of the land without notice of any defect in the title. It follows that, if the issue depended solely upon the question as to Stephen Neal’s sanity, the testimony of the tenant was utterly irrelevant and unquestionably calculated to prejudice and mislead the jury. It is claimed by the tenant’s counsel to have been " material as tending to show that defendant has good cause to defend his premises against the claims of a worthless speculator, so that the jury might fully understand the substantial ground on which he stood.” But that is not a "good” nor a " substantial” ground for defence which has been decided not to be a legal ground.
If, therefore, it had appeared in the exceptions, that the only ground on which the demandant claimed to invalidate the deed, was a want of mental capacity in Stephen Neal to make an indefeasible conveyance, it would have been plain that this exception ought to be sustained. But this important fact is not asserted in the exceptions. It is hardly just to call upon us to presume that Mrs. Dennett was guilty of so dishonest an act as to make sale of this property to the demandant, claiming to avoid her father’s deed, without even *276offering to refund the purchase money which had accrued to her father’s estate in the transaction, and hence to her, as his sole heiress at la\v, if she knew or believed that that deed was made in the absence of all fraud or circumvention to one who dealt with him in good faith, paying a fair equivalent for the land. It is more natural to suppose that it was claimed on the trial that Stephen Neal was overreached and defrauded in the original sale of the land, and perhaps some testimony was offered by the demandant, tending to show that some undue advantage was taken of him in his old age, to induce him to part with it for less than its fair value. Such claim or evidence would at once account for and justify the admission of the testimony from the tenant now under consideration. Eor although the Court, in the former hearing of the cause, established the doctrine that " the right of the insane to avoid their contracts is an absolute and paramount right, superior to all equities of other persons, and may be exercised against bona fide purchasers from the grantee,” they did not fail to recognize the previously well established rule, that while a man who is defrauded, may, as against his immediate grantee, avoid his deed, he is not permitted to do so against those deriving, in good faith and for an adequate consideration, a title from such grantee. Hovey v. Hobson, 58 Maine, 458.
Inasmuch as it is incumbent upon a party excepting to the admission of testimony, to make it apparent that there was no phase of the case, as presented at nisi prius, which authorized the admission, this exception must fail also.
5. David Green’s letter and receipt cannot be considered part of the res gestae, or admissible upon any principle known to the law of evidence. Beyond question they were rightly excluded. Conceding all that demandant’s counsel claims for them, on the score of antiquity and authenticity, the most strictly legal proof that a man’s wife and her brother had conspired ever so successfully to appropriate some of his funds to the wife’s separate use, would afford no le-, gitimate inference against the sanity of the man.
*2776. The " paper purporting to be a copy of paper dated Nov. 20,1835, called a trust deed,” does not appear to have been offered under such circumstances as would have made a copy admissible, and even the original would have been liable to the same objections, on account of which we hold the testamentary paper of Oct. 29, 1835, to have been rightly excluded. There is nothing in the exceptions upon which to base the argument that it should have been admitted for the purpose of contradicting Neal Dow.
7. The three remaining positions taken in argument by the demandant’s counsel, relating, as'they do, to certain requested instructions, and to the mode in which the case was put to the jury, may properly be considered together, for, looking at the requests and the instructions given, it is plain that the demandant cannot be considered as aggrieved by the omission to instruct in form as requested, if the rule, which ought of right to govern the decision of the case, was clearly and intelligibly laid down. The right of counsel to call for instructions in matters of law does not comprehend a right to have his arguments repeated and endorsed by the presiding Judge, but only to have the question upon which the jury are to pass, correctly presented to them disencumbered of false issues which might tend to prejudice and lead them astray. It becomes important accurately to ascertain what rule was given to the jury in this case, and upon what finding in matters of fact their verdict was made to depend.
The Judge submitted to the jury three written questions with instructions such as could not fail to give the jury to understand, tha,t upon their answers to these questions, or some of them, the rights of the parties must depend, but reserving his instructions as to the legal effect of the answers until these questions of pure fact should have been settled. It is not perceived that there was error in this. Such a course of proceeding, if the questions did, in fact, embrace the substance of the issue presented, would seem well calculated to secure a fair determination of the exact matters of fact in controversy, unembarassed by irrelevant issues, and *278unbiased by prejudice or sympathy for or against either party, and, in a case where the result must depend upon the answers to one or two direct questions, we think neither party can object to the adoption of this course by the presiding Judge in his discretion, in lieu of an attempt to disentangle the case from its embarrassments by specific instructions as to all the matters involved in the outset, an attempt which, in complicated cases, it is to be feared, is not unfrequently rendered abortive by the misapprehension or forgetfulness of the jury. The method pursued here seems to have the merit of simplicity and directness.
We are now to inquire whether the questions did cover the whole issue between the parties, and whether the answer returned justified the direction which the Judge gave, the jury thereupon, to render a verdict for the defendant. The first question was as follows : — "Was Stephen Neal, at the time the deed of July 27, 1835, to Samuel E. Crocker was signed and delivered, of sound mind?” And the jury answered that they were " unable to agree upon a direct answer to this question.”
The second was, — "Did Stephen Neal execute and deliver the deed of July 27, 1835, to Samuel E. Crocker, at or about its date, understanding and comprehending the nature of his act, the consideration to be paid, and that he was thus transferring the title of the property therein described to said Crocker and the consideration to himself.” And the jury answered that he did. The third question became immaterial by reason of the answer to the second. Upon these answers the Judge instructed the jury that the defendant was entitled to a verdict, which was accordingly returned.
It is not now contended that the demandant was entitled to recover upon any other ground than the incapacity of Stephen Neal, by reason of mental disease, to make a valid conveyance on the 27th of July, 1835.
If the first question were to be taken as an inquiry whether Stephen Neal was at that time " of sound mind,” in the legal acceptation of that term, then the failure of the jury *279to agree upon an answer, would have been a failure to agree as to what was vital to the disposition of the case, and the instruction to return a verdict for the defendant would have been erroneous. The grantor must be " of sound mind” as the law understands the phrase, in order to make a valid conveyance. But it is plain, from the tenor of the instructions given when the question was submitted to the jury, that the inquiry was not so designed to be understood, and was not so understood by them. They were told, in .so many words, that "it was not an inquiry as to his responsibility, in whatever mental condition they might find him,” and that they need not trouble themselves what legal or medical name to attach to it. It was the naked question— was he of sound mind? i. e. of absolutely sound mind, in full possession and exercise of all his mental faculties ? and this as contra distinguished from any enfeebled condition of mind which still might be compatible with legal soundness. Their failure, then, to agree upon a direct answer to this question, does not negative the idea that the grantor was of sound mind, legally speaking, if the finding-in answer to the second question is substantially equivalent to an affirmation of his legal competency to convey. Now, touching this matter of the validity of this conveyance, upon which this case was to turn, the jury have found that the only party to it, whose capacity to consent thereto was doubted, " did execute and deliver it, understanding and comprehending the nature of the act, the consideration to be paid, and that he was thus transferring the title to the property therein described, to the grantee and the consideration to himself.” Is anything more required to evince an intelligent assent on his part? or to show that he was in " possession of mental capacity sufficient to transact business with intelligence and an intelligent understanding of what he was doing?” The ruling, in substance, is — that ability to execute and deliver a deed understanding and comprehending the nature of the act, the consideration to be paid, and that he was thereby transferring the title to his property *280to the grantee, and the consideration to himself, indicates sufficient soundness of intellect in the grantor to make the conveyance valid, though it be uncertain whether his mind was in all respects and absolutely sound. Now in what .essential particular does this differ from the rulings and refusals to rule, which were held correct in the suit of this demandant against Chase, involving the same question and title, and reported 52 Maine, 304? There the presiding Judge instructed the jury that "no degree of physical or mental imbecility” (in the grantor) " can avoid his deed if he had legal competency. Legal competency to act, is the possession of mental capacity sufficient to transact business with intelligence and an intelligent understanding of what he was doing;” .and he refused to instruct them that, "if he had not sufficient intelligence and understanding to transact business in a proper and provident manner, he was of unsound mind.” Thus, the ruling in Hovey v. Chase, recognizes a distinction between absolute and legal soundness of mind, and the possibility of legal competency to convey where perfect mental soundness is lacking, and makes ability to transact business with an intelligent understanding of what he was doing the test of legal competency in the grantor. Why should it be otherwise ? What more could or ought to be done by way of laying down a governing rule for the action of the jury in such cases ? The assent of two minds of sufficient intelligence to be capable of comprehending the import of the transaction is necessary to the validity of a contract or conveyance. But the law can fix no other or more particular'standard of intelligence. Whether mental disease or infirmity has proceeded so far as to destroy that capability is a question of fact to be determined according to the circumstances in each particular case where the validity of the act is in question, and, in the case at bár, was determined by the jury in favor of the tenant in their answer to the second question. Any attempt to lay down other general rules applicable to all cases of this sort would be liable to lead to inextricable confusion and con*281fiict in the decisions, and, if adhered to, in many cases, to positive injustice. This seems to have been realized by the Judge, upon whose remark, (in Gibson v. Soper, 6 Gray, 282,) that " one of the obvious grounds upon which the deed of an insane man is held voidable, is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the proceeds of the sale,” the demandant’s counsel here based one of his requests for instruction ; for, in another part of his opinion, referring to the case of Arnold v. Richmond Iron Works, he says, " the tenant relies upon some remarks of the Chief Justice in delivering the opinion of the Court, as sustaining his position. Nothing is more unsafe than to rely upon such remarks taken from the connection and context by which their meaning is limited and qualified. In their relation and application to the facts under discussion, they may be sound and pertinent; wrested from their connection and application and applied to a different state of facts, they may be neither just nor sound.” Given as the foundation of a reason why an insane man should not be called upon to restore the consideration before avoiding his deed, the remark first quoted is unobjectionable, but, applied as a test to determine a man’s-capacity to make a legal conveyance, it is " neither just nor sound.” Many a man has unquestionable capacity to make sale of his property, who has not the faculty "prudently to manage and dispose of the proceeds of the sale.”
We say, then, that a want of absolute and perfect soundness of mind does not necessarily affect the capacity to make a valid conveyance, provided the mind is still capable of fully comprehending the import of the act.
Insane delusions and mental infirmities may or may not be of such a character as to affect the validity of an act of conveyance. Where they are of such a character, they are not to be disregarded, and, if directly connected with the act, incapacitating the party from understanding its nature or character, or the results which would flow from it, they would destroy its validity. And this is the true extent and mean*282ing of the case of Bond v. Bond, 7 Allen, 1, cited for the demandant.
In the case now before us, there is nothing indicating the existence of such delusions. So far as we can gather the facts, from the exceptions, the demandant claimed that there was a gradual decay, ending, in old age, in the utter destruction of the mental power of the grantor, and the case seems to range itself more nearly in its facts with those of Hill v. Hash, 41 Maine, 585, and Jackson v. King, 3 Cowen, 207, the doctrines of which are too familiar to need rehearsal.
In all cases involving an inquiry of this sort, in order to avoid erroneous conclusions, the strictest attention must be paid to the particular circumstances, so as to ascertain, if delusion and infirmity appear, whether they are so connected with the act, the validity of which is in dispute, as to show that, as to that act, the intelligent assenting mind was wanting.
"Every instance must be judged on its own merits, and, while weakness of understanding deserves protection, it should be remembered that too nice an investigation of eccentricities and imperfections may lead to oppression and injustice.” Beck’s Medical Jurisprudence.
It is not upon proof of a few irrational or absurd acts merely, that mental alienation, incapacitating a man for the management of his own affairs, and avoiding his contracts at the option of his heirs, is to be inferred. Semel insanivimus omnes, — and are fortunate if only once.
The learned Professor Casper, Forensic Physician to the Courts of Justiciary in Berlin, (whose cautious scrutiny, physicians who are called to testify as experts to the mental condition of those whom they have never seen, where an opinion, if formed at all, must be based upon the necessarily imperfect observation and detail of witnesses not experts, would do well to bear in mind and imitate,) remarks as follows; — "Of all the questions which the physician has to treat in medico-legal practice, there is, without exception, no .one more difficult to solve than that of the disputed mental *283condition of any individual. * * There is difficulty, in many cases an actual impossibility, of determining the limits between mental health and mental disease. Those fortunate individuals gifted by Providence with a perfectly proportionate and completely harmonious development of all the fundamental powers of the mind, representing, as it were, the perfect norm of mental health, are extremely rarely to be met with.”
"In forensic medicine, in every matter, and nowhere more than in psychological affairs, individualization, the critical examination of the individual case, is the only proper method of inquiry.”
Elsewhere he speaks of " the important consequential and dangerous results to which the habit of generalization in medico-legal matters has led.” And again, he says, — " there is nothing else for it but to consider the practical circumstances of each case, and the principle of the individualization of each case, in my opinion, ought to be firmly maintained throughout the whole of forensic psychology.”
But the authority of the learned need not be quoted in support of these.ideas. They are the utterances of the plainest common sense. Apparently the presiding Judge had them in mind when he put the second direct question to the jury and ruled so as to make the case turn upon their answer.
The partially insane or feeble in intellect are responsible even criminaliter, if they understood the nature of their acts and knew that they were wrong. It is not every kind or degree of insanity which exempts from punishment. " The test of such insanity as will excuse the commission of crime is whether the accused, at the commission thereof, was conscious that he was doing what he ought not to do. United States v. McGlue, 1 Curtis’ C. C. Reports, 1; State v. Spencer, 1 New Jersey, 196; Roberts v. State, 3 Kelley, 310.
And see Casper’s Forensic Medicine, vol. 4, p. 238, Case CLXXX, for details-of an instance where a man was rightly *284held competent for the management of his own affairs without the intervention of a guardian, and actually for years transacted business as a house agent, though all the while laboring under most manifest and obstinate insane delusions, which, however, appeared not to affect his comprehension of business matters. Though not absolutely, he was legally of sound mind.
Not finding that the excepting party lost anything to which he was rightly entitled by the manner in which this case was given to the jury, or by the rulings in respect to the admission and exclusion of testimony, the entry must be
Motion and Exceptions overruled.
Judgment on the verdict.
Appleton, C. J., Walton, Daneorth and Talley, JJ., concurred.
*290jy. Webb, for the complainant.
J. D. & F. Fessenden, for the respondents.