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1. BAY, M. 1). 
[From the American Journal of Insanity, for January, 1875.] ' 'he Duncan JCase. 
By I. BAY, M. I). 
[From tlie American Journal of Insanity, for January, 1875.] 
In 1849, there came to this country, from Ireland, 
Andrew Duncan, a land surveyor, and settled in Pitts- 
burg. He was accompanied by a part of his family, 
the rest following, three years afterwards. It con- 
sisted then, besides his wife, of seven sons and one 
daughter, the eldest being sixteen years old, and the 
youngest, two. Thomas, next but one to the oldest, 
and then twelve years old, obtained employment in a 
humble capacity, in an iron establishment, until, in 
1859, he concluded to try his fortunes in the oil regions. 
At first he was unsuccessful, but in 1863, there came a 
turn in the tide which swept him on to riches. By 
means of a few oil wells and judicious land invest- 
ments, lie became possessed of nearly $400,000 at the 
time of his death, eight years afterwards. In 1864, his 
health began to fail, some bronchial troubles then 
appeared which never left him; he complained of his 
throat, and went about much wrapped up. During 
the early part of this period of failing health, he had 
some attacks of asthma, and through the whole of it, 
he had the ways and looks of an invalid, though sel- 
dom confined to the house. In 1870, he went abroad 2 
for his health, anti while staying with his friend, Mr. 
James Lindsay, near Belfast, Ireland, in October, he 
had one of his asthmatic attacks, from which he rallied, 
and in the early part of November he left the vicinity 
of Belfast, and spent the winter in the South of Ireland. 
There, in April next, he again became ill, and went 
back to the house of his friend, Mr. Lindsay, where he 
remained until he died, first of June, 1871. On the 
20tli of May, eleven days previously, he executed his 
last will and testament, which was contested by the 
heirs-at-law, on the ground of mental incompetence, in 
the Circuit Court of Calhoun County, Michigan, held 
at Marshal, in October and November, 1873. The evi- 
dence relating to his mental condition may be conven- 
iently considered under two heads, viz., that founded 
on the observation of his brothers and a few other per- 
sons, during the period extending from 1864, forward 
towards the latter year or two of his life, and that 
given by medical experts founded on the testimony in 
the case. 
By tlie former, he was represented as having been very 
forgetful, capricious and irritable.' They said that busi- 
ness worried him; that he would refer people who 
came to him on matters of business to his brothers, and 
that he complained much of his head. His brother 
James said that in 1865, “he noticed he was a different 
man from what he was apparently six months or a year 
before.” “He was forgetful, unable to keep names, to 
recollect transactions, and was continually complaining 
of his head.” “His memory seemed to be entirely 
gone, except for momentary transactions.” “He was 
very absent minded, very fickle minded.” He also said 
that the testator, when sick—referring to his attacks of 
asthma—was “ very irritable.” His brother Richard 
testified to the same effect. “At one time,” he says, “lie complained of its [business] giving him a pain in 
the head; at other times, of its making him weak; 
again, after giving attention to it for any length of 
time, lie would become very irritable.” In 1869, these 
mental infirmities, he thinks, had increased. He was 
in the habit at one time of dictating his letters to wit- 
ness, and then copying them, the copy being sent. His 
brother George says, “the only peculiarity I noticed in 
him, [date not given, except that it was previous to 
1867,] was that he would tell me things about certain 
men there, and afterwards would deal with the men 
different from what I would have done under the cir- 
cumstances.” In “winter of 1866,” he found his 
brother, the testator, quite ill at Oil City, with one of 
his asthmatic attacks. When asked by witness what 
was the matter, he replied that “the doctor intended to 
.poison him.” Then he asked, “who is that man,” 
pointing to the person who had been attending on him, 
and said, “ I wish you would put that shark out of the 
room.” His brother William testified, that in 1864, he 
solicited him to go to Pit Hole and manage his busi- 
ness there, saying, “ you know, William, I sometimes 
can’t foot up four figures, and I forget one day what I 
do the next. You remember my hurt.” About this 
time, he had forgotten a thirty days’ note he had given 
for some firewood, and was angry with his brother for 
having paid it, until convinced by seeing the note that 
he had given it. Willis, who had advertised his farm 
for sale, says, the testator with a view to purchasing it, 
solicited a call from him, and in the course of the inter- 
view, he asked, several times, how many acres were in 
the farm, and its distance from the railroad. This was 
in the winter of 1864 and 1865. In the August follow- 
ing, they visited the farm together, when the same re- 
peated inquiry about the number of acres occurred. On 4 
this occasion, lie told witness that he had got a blow on 
the head in the oil regions by the fall of a piece of tim- 
ber; that he was taken up, and remained unconscious 
for 24 or 48 hours. “ My head bothers me a great 
deal,” he said, “and I don’t know as I’ll ever get over 
it, but don’t you say a word to ma’am [mother] about 
it.” “ lie acknowledged,” said the witness, “ that he 
was very forgetful, and that the effects of that hurt 
troubled him, and he was at times very unwell.” In 
speaking of a famous cow, he said his mother “ used to 
make lots of butter from that cow,” and that remark 
he repeated, half a dozen times a day. One night on 
going to bed, he looked under the bed, into the closets 
and wardrobe, and the lower drawer of the bureau, 
under the washstand and into the cupboard, and then 
pulled out a pistol and placed it under his pillow, say- 
ing, “I want to be sure no one is here.” At this time, 
in one of his asthmatic attacks, he suddenly manifested 
a strong aversion to the witness, though previously 
very sociable and pleasant, and would not allow him to 
enter his room. The next day he met witness, they 
shook hands, and became as good friends as ever. Wal- 
lace, who knew him slightly in 1870, called on him to 
get him to subscribe to a new railroad, and thought 
“he did not appear like a man of very firm decision of 
character.” Collier, who accompanied Wallace, says, 
“ he seemed to be a very cautious man, so much so that 
it bordered on timidity.” They both say he complained 
of his head, and wished not to be “bothered with busi- 
ness.” Andrus says that at some society meeting, 
testator was asked to serve on a committee, which he 
declined, saying, “I do not want to trouble myself with 
any business; my head troubles me.” Hubbard, an 
assessor of taxes, asked him for an inventory of his 
property, when he, after mentioning one or two pieces, hesitated, and said, “you will have to see Richard.” 
Again, he went to see him about some insurance busi- 
ness, while his house was repairing, when he said, after 
asking one or two questions, “ I am all confused about 
the matter; my house is turned upside down; you will 
have to see Richard.” Addington went with him once 
to look at a piece of land, and while stepping across a 
ditch he slipped, and said immediately “he did not 
want that part of the land, did not want anything to 
do with it.” He once asked witness to do some figuring 
for him, because it confused him. “ There did not 
seem,” says the witness, “to be much continuity of 
thought.” Pixley says of him, that in 1865 and 1867, 
he would ask the same questions over and over again * 
and complained of a roaring in his head. Morse says 
he spoke to him about his trouble with Willis, and he 
replied that he did not remember it. Colvin says that 
testator asked him in 1867, to see Brown and ascertain 
what he, B, would sell his farm for, and the next day 
had forgotten all about it. Halbert repaired his house 
in 1869, when he inquired several times the amount of 
the bill. Hoyt repaired furniture for him, and says 
that in giving orders, he was very absent minded. Jim- 
merson, 1866 or 1867, “saw something peculiar in his 
manner and conduct.” He would pace up and down 
the room, holding his hand to his head, and never 
seemed to notice people then. Kellogg thought “he 
had not much stamina of character.” Rowell says he 
failed to enumerate all his property to him, when he, 
the witness, was inquiring with reference to income tax. 
He says they drove over to Coldwater, in 1870, to 
attend a railroad meeting; that he was moody and 
silent all the way over, and very social and jovial, all 
the way home. Johnson says “ he would tell me things 
to day, and to-morrow forget all about them.” Testator said “his health was so bad, lie did not think he was 
tit do business.” Crane went to him about a bill for 
lumber, which he promised to pay if right; that he 
went a second time, two or three weeks afterwards, 
when he had forgotten all about it. Pugsley says he 
once rode with him, three-quarters of an hour, when he 
frequently put his hand on his head, and asked several 
times if he was an old resident. Raymond mentions 
an instance of forgetfulness, and says he seemed very 
absent minded. 
This is the case of the contestants so far as it de- 
pends on proof of mental impairment, previous to his 
last illness. Every remark made by their witnesses, 
every fact given by them, having any bearing on this 
point, are here faithfully presented, and they certainly 
fall very far short of what the occasion required, taking 
them with the smallest abatement for mistake or high 
■coloring. That lie may have suffered several years from 
the blow on the head, as indicated by pain and uneasi- 
ness ; that, in consequence, attention to business may 
have sometimes so worried him, as to induce him to put 
it off upon others when practicable; that it led to 
some lapses of memory; and that, in connection with 
his asthmatic troubles, he was occasionally irritable 
and cross,—all this may have been without implying 
any impairment of his business capacity. This was 
abundantly proved by the evidence on the other side. 
It was testified by a considerable number of persons 
who had had more or less intercourse with him during 
this period—some in matters of business, some in cas- 
ual conversation, some in social gatherings where he 
took a leading part—that they had observed no forget- 
fulness, nor any other mental defect, and regarded him 
as a man of average intellect. Bishop Simpson had 
known him for many years, and during the latter part of his life had had considerable intercourse with him, 
without observing any of these indications of mental 
impairment. Neither did Mr. Long whose house he 
made his home when in Philadelphia, and with whom, 
of course, he must have been quite intimate, observe any. 
Indeed, it was during this very period when he is repre- 
sented as having been so forgetful and unfit for business, 
that he made the greater part of his fortune. On this 
point the testimony of Prather was remarkably signifi- 
cant. He and his brother formed a partnership with tes- 
tator, in 1864, which continued several years, during 
which they made leases, bought and sold property, and 
obtained an interest in an oil farm, “which transactions,” 
he says, “ were made by Thomas G. Duncan himself.” 
He got up the plan on which Pit Hole City was built, 
in 1866, and he was an active participant in settling up 
their interests in the oil farm, involving about $1,- 
300,000. 
This kind of testimony renders it certain, that the 
forgetfulness, worry, irritability, and petulance men- 
tioned by the contestants’ witnesses, were of a triv- 
ial character, affecting not at all his judgment or 
capacity for business. Indeed, much less reliance was 
placed on this evidence, than on that of the medical 
witnesses. These gentlemen, eight in number, one of 
whom is a professor in a mediyal college, some well 
known beyond their immediate neighborhood, and all 
with a respectable standing in their profession, declared 
that the nature of the testator’s disease incapacitated 
him for any such exercise of mind as is required in the 
making of a will. The office of the lungs, they said, 
is to purify the blood by eliminating such portions as 
are no longer fit to be used, and receiving fresh sup- 
plies of oxygen from the air. The testator’s lungs were 
found after death to have been rendered by disease in- 8 
capable of performing their special function to such an 
extent, that the blood could not have been properly 
purified, and that the brain, which received it, must 
have been poisoned by it, and consequently incapable, 
in the nature of things, of anything like healthy men- 
tal exercise. Before discussing this opinion, it will be 
necessary to examine the foundation on which it rests. 
Dr. Aickin of Belfast, who attended the testator, 
states in his deposition, that in October, 1870, he found 
him suffering with cough, dyspnoea and bloody expecto- 
ration, and “discovered that congestion existed to some 
extent in the upper lobe of the right lung.” On the 
28tli of April, 1871, the same train of symptoms re- 
turned, accompanied by congestion in the upper lobe of 
the right lung, and also at the back and lower part of 
left lung, together with a mucous rale, in the front and 
upper part of the left lung, with weak and intermitting 
action of the heart. On or about the 20tli of May, he 
says, “ there was dullness on percussion under the right 
clavicle, and on auscultation, mucous rale was audible, 
and the same sign appeared at the lower lobe of the 
same lung; on deponent examining the left lung, a very 
feeble respiratory murmur was audible down along the 
side of the scapula, and also in front, beneath the 
clavicle. On ]3ercussion the whole of the left side of 
the chest was perfectly dull.” In another place lie says 
that “there was some sound indicating presence of 
emphysema,” below the right clavicle. 
Tlie autopsy revealed tlie following conditions: “ tlie 
rigor mortis has not passed off, the body and upper 
limbs are much emaciated, the feet and legs are very 
cedematous and pit on pressure. Chest—the left pleura 
is distended with an enormous quantity of serum, so as 
to flatten the lung almost to a condition of carnification, 
tlie pleura, both costal and pulmonary, is coated with a 9 
very thick deposit of floeculent lymph, at a few points, 
especially, posteriorly, adhesions exist between the pul- 
monary and costal portions of the membrane. The 
upper part of the lung is firm, evidently air can not 
have penetrated to many of the vesicles for some time. 
The greater part of the lower lobe is in a state of hep- 
atization, puriform secretion at points. On the right 
lung there is some emphysema of the upper lobe, the 
base is liepatized, but not to the same extent, nor is it 
so far as the third stage, as on the left. The heart is 
large and very soft, it weighs fully fourteen or sixteen 
ounces, its muscular texture is extremely soft, and the 
walls of each of the cavities are thinned, the left 
auriculo-ventricular opening is very much contracted; 
it will not do more than permit the passage of my in- 
dex finger; the bicuspid valves are very much infiltrated 
and thickened with a deposit of a bony hardness, the 
aortic opening is of a normal size, its valves are infil- 
trated as described, but scarcely to the same extent. 
The liver and spleen are healthy. The kidneys would 
certainly weigh five or six ounces each, they are healthy, 
but congested. The other abdominal viscera do not re- 
quire observation. The brain is healthy, there is some 
opacity of the arachnoid on the upper surface of both 
hemispheres.” 
It was these effects of disease as discovered before 
and after death, which led these gentlemen to express 
the opinion in the broadest and strongest terms, that 
the mind of the testator was incapable of that contin- 
uous and independent action required in making a will. 
That this opinion is entirely unwarranted by the well 
recognized truths of physiology and pathology, I shall 
now proceed to show. 
The very considerable diminution of the breathing 
capacity of the lungs revealed after death, does not imply that, in the very nature of things, the blood was 
imperfectly purified on the 20th of May, 1871, or at any 
time, except at the closing hours of life. This notion 
that the blood sent to the brain was loaded with car- 
bon, was founded on several fallacies respecting the 
parts performed by the lungs and some other organs in 
the animal economy, and on a gratuitous assumption 
respecting the progress of the disease. 
On the side of the proponents, nine medical wit- 
nesses appeared, including the writer, most of them 
justly eminent as teachers and practitioners of medicine. 
They insisted chiefly on that well known law of the 
animal economy, whereby organs engaged in the per- 
formance of kindred offices, may, under stress of disease 
or other peculiar circumstances, assume, to some extent, 
the functions of one another. This compensation of 
function, as it has been called, is observed every day 
by the practicing physician. Very close is this relation 
between the lungs, skin, liver and kidneys, in the per- 
formance of the common duty of relieving the blood of 
its effete particles. When the secretory action of the 
skin is interrupted, the lungs or kidneys, or both, take 
on an extra amount of duty, and when it is increased 
beyond the normal quantity, the kidneys respond to 
this unusual activity, by secreting a smaller quantity of 
urine. If the function of the liver be deranged, highly 
carbonized products make their appearance in the urine. 
When the kidneys fail to eliminate the proper amount 
of urea, it may be found in the perspiration or in the 
evacuations from the intestines. And so, too, when the 
lungs fail to excrete all the carbon from the blood, ac- 
cording to the requirements of the economy, the skin 
increases its secretion of carbonic acid. 
There are other considerations involved in this ques- 
tion, which were entirely disregarded by the contestants’ 11 
witnesses, and which could not very well be presented 
on the witness stand, in a thorough and orderly man- 
ner, by those on the other side. By the former it was 
assumed, for their starting point, that any diminution 
of the normal capacity of the lungs must necessarily be 
followed, to that extent, by imperfect purification of the 
blood. This kind of logic, applicable enough to 
mechanical contrivances, will hardly answer here. The 
animal organs are so constituted that they can adapt 
their working power to the necessities of the occasion. 
Without this provision, life could scarcely endure; but 
with it, it meets successfully the shocks of accident, 
imprudence and disease. Thus the heart may double 
the number of its pulsations for days and weeks to- 
gether, and then subside, without harm, into its normal 
rate of activity. The stomach, when forced to the task 
may digest twice the amount of food which the system 
requires, without contracting dyspepsia or inflammation. 
The skin remains sound and fit for its duty, whether 
pouring out the matter of perspiration in streams, or in 
particles too minute to be visible. For years together, 
the kidneys, under the stimulus of certain medicines or 
drinks, may secrete far more than the normal quantity 
of urine, without any appreciable damage. Probably, 
no organ possesses a greater amount of this reserved 
power than the lungs. The twenty inspirations per 
minute, sufficient for every purpose, in a person at mid- 
dle age, and in complete repose, may, under the pressure 
of febrile excitement or violent exercise, be raised to 
thirty. Tubercles, abscesses, indurations, may waste 
their substance, and fashionable modes of dress may 
impede their motions, while they still continue to act 
with no sensible diminution of their allotted part in 
the economy of the system. One has not to search very far to find this fact of 
reserved power in the lungs clearly set forth, for it is 
recognized in every modern book on physiology. Turn- 
ing over the leaves of the last one out, Dr. Austin 
Flint’s, we find it stated that while the average volume 
of breathing air, in a man of ordinary stature, is twenty 
cubic inches, it may, under excitement, rise to seventy- 
seven inches. In the same work it is stated that the 
extreme breathing capacity, by which is meant the vol- 
ume of air that can be expelled from the lungs by the 
most forcible expiration after the most profound inspira- 
tion, may be diminished ninety per cent,, in phthisis 
pulmonalis, and life still be maintained. The late Dr. 
John Gorham of Boston, once made an autopsy of a 
man who died after a few days illness, not involving 
the lungs, in whom one lung was found shriveled to half 
its normal size, and so solidified as to be perfectly im- 
pervious to air. His wife declared, that with the excep- 
tion of a bad cold some dozen years before, he had 
suffered no ailment that could be referred to the chest. 
And yet this man belonged to a musical band, and 
played on the French horn up to the beginning of his 
last illness.'"* 
So too the records of clinical pathology are full of il- 
lustrations of this truth. In such works as Broussais’ His- 
toire des Pldegmasies, and Andral’s Clinique Medicaler 
the reader will find scores of cases in which the lungs 
were reduced, by the ravages of disease, to one-half or 
less of their normal capacity, while not one word is 
said about coma or delirium, except, perhaps, in the 
final hour. An autopsy of a subject of chronic phthi- 
sis, furnished by my friend, Dr. J. S. Parry, of this city, 
tells the same story. “ In the upper lobe of the left 
lung was a cavity nearly as large as one’s fist, filled 
* New England Jour, of Med. and Snrg,, October, 1823. 13 
with mucous and puriform matter. Below this were 
several smaller cavities filled with the same substance. 
The remaining portions of the upper lobe were filled 
with yellow, cheesy deposits, mixed with miliary tuber- 
cles. The lower lobe was filled with the same cheesy 
masses, mingled with miliary granulations. In the 
apex of the right lung was a cavity about half as large 
as that on the opposite side. The whole upper lobe 
was filled with cheesy deposits and riddled by small 
cavities, among which were some miliary tubercles. 
The lower lobe contained many pneumonic deposits 
and miliary tubercles, but in no place had the former 
began to soften. This portion of the organ, which was 
the only part that crepitated on pressure, was deeply 
congested.” Here was a pair of lungs reduced to, at 
least, one-quarter of their proper breathing capacity 
And yet it is recorded of this man, “that up to the 
time of his death, his mind was perfectly clear, so that 
he was able to make his will, and c;ive directions in re- 
gard to his business.” 
There is another point in the pathological aspect of 
the question, which, though utterly ignored by the con- 
testants’ experts, is fatal to their conclusion. The tes- 
tator was incompetent, they say, because in the condi- 
tion of the lungs as presented by the autojisy, the 
blood could not have been purified. This implies, of 
course, that the lungs were in the same state on the 
20th of May, when the will was executed—with as 
much hepatization and congestion, and as much impervi 
ousness to air—as they were found to be twelve days after- 
wards. That this is an assumption, totally unwarranted 
by all our knowledge of diseased action, no pathologist 
really deserving the name, will deny. It would be a 
thing unprecedented, if there had been no progress of 
the disease during the last ten or eleven days of life. 14 
It is a well recognized fact that the three stages of 
pneumonia, as described by writers, may be completed 
within a few days, and these gentlemen, let us bear in 
mind, strongly insisted that this was a case of acute 
pneumonia. It will be seen, presently, that the disposi- 
tions of the will, with a few exceptions, were embodied 
in a will which was executed on the 10th of May—ten 
days before—and surely, it can not be contended that 
the condition of the lungs, as revealed by the autopsy, 
had existed for twenty days. Legally, of course, that 
first will is without effect, but pathologically considered 
it strongly confirms the validity of the final will. So 
that if there was any period when the disease rendered 
the decarbonization of the blood impossible, it could 
not, in all probability, have been on the 20th of May, 
and much less on the 10th. 
It is obvious enough, without farther discussion, that 
the testator’s case, medically regarded, is only an illus- 
tration of that well known law of the animal economy, 
whereby an organ having a considerable range of func- 
tion, may become incapable in one sphere of its activity, 
and yet remain perfectly competent in others. Thus, 
Mr. Duncan, though quite unable on the 20th of May, 
to walk a thousand miles in a thousand hours, was as 
competent to make his will as he ever was in his life. 
If this repetition of elementary truths, which every 
physician may be supposed to have learned during his 
pupilage, may seem like a trifling with the understand- 
ing of the reader, I need only say in excuse, that a 
pathological dogma, ignoring them altogether, served as 
a pretext for annulling the exercise of one of the most 
sacred rights of men. 
The reader must have already anticipated the ques- 
tion whether there was anything in the circumstances 
connected with the will to furnish the slightest support 15 
to the contestants’ theory—for it was nothing but a 
theory—and in reply, I am obliged to say, nothing, ab- 
solutely nothing. On the contrary, the whole transac 
tion was singularly free from suspicious circumstances. 
The dispositions of the will, with one or two exceptions, 
originated with himself, many of them are in accord- 
ance with previously expressed intentions, a considerable 
length of time was taken to perfect the instrument, and 
he was surrounded by friends who had no views adverse 
to those he might be supposed to have entertained re- 
specting the disposition of the great bulk of his prop- 
erty. If he was incapacitated by, carbon in his blood, 
he must have manifested either coma or delirium, as no 
other mental disturbance has ever been known to result 
from that cause. If it be shown that neither was ob- 
served in the whole course of the disease, except per- 
haps in the last hours, then the carbon theory must be 
abandoned altogether, and resort must be had either to 
delusion, or to that general weakness and hebetude of 
mind on which undue influence can be easily exerted. 
Let us see if the circumstances attending the making 
of the will furnish any more indication of these mental 
conditions, than the truths of physiology and path- 
ology do of undecarbonized blood. 
It appears that the testator went to Europe in 1870, 
and while visiting Mr. Janies Lindsay, residing near 
Belfast, Ireland, with whom he had been previously 
acquainted, had one of his asthmatic turns; that he 
apparently recovered and spent the winter in the South 
of Ireland; that in April, 1871, he returned quite ill 
to Mr. Lindsay’s; that about a month before his 
decease, he expressed to Mr. Lindsay a wish to make 
his will, and asked him to ascertain if there was a law- 
yer in Belfast who understood American law; that 
Lindsay called on Dr. Janies Rea, the American Consul, 16 
from whom he obtained the form of a will from an 
American book ; that the testator declined acting just 
then, but on the 8th of May, requested Lindsay “to 
take down particulars for the making of his will,” 
which he did the next day; that from these instruc- 
tions, a will was drawn by James Stewart, clerk of a 
solicitors’ firm in Belfast; that the clerk then called 
“ and remained alone with the testator for a consider- 
able time,” and then “ came down into the parlor and 
engrossed the will;” that witnesses were then called in, 
and the will duly executed. Mr. Stewart says that 
various alterations of little importance were made, 
some at his suggestion, and some at the testator’s, and 
at last, no other person being present, he asked the 
testator “ if the draft will was satisfactory, and whether 
it carried out his wishes,” when he replied to both 
questions, affirmatively. He also asked testator “if 
there was any undue influence brought to bear upon 
him to induce him to make his will in the manner pro- 
posed, to which he replied, ‘ none whatever, my broth- 
ers have treated me badly, and there will likely be liti- 
gation with respect to my will, as I am sure they will 
be displeased.’ ” 
To Lis "brother Francis, he gives $5,000, and to Rich- 
ard, $10,000. To his brother George, $5,000, and all 
his property in the oil regions, together with his inter- 
est in Pit Hole City, and the Town of Plummer. To 
his brother James, he leaves an estate estimated to be 
worth about $11,500 “ together with sufficient to pay for 
a gardener and two female servants, after his death, to be 
given to my brother George’s oldest child, should my 
brother James die before said child would be twenty- 
one years of age, then the trustees to let the same, and 
the proceeds to be properly secured for him when he 
comes of age.” Ilis brother William and sister, Mary 17 
Jane, lie says, “ are already provided for.” To his 
mother, he gives a yearly income of $2,500, to he ob- 
tained by the sale of various estates in Ohio, Illinois, 
Ac., together with his house in Pittsburg, “to be fur- 
nished at an expense of $5,000.” To Fanny Howard, 
he gives $10,000; to William Jackson, $20,000; to 
William Wilson and Charles Wilson, $10,000, each; to 
Miss Sarah Prather, $30,000; to Ann Yorke, $10,000; 
to James Lindsay, $10,000; to his physician, Dr. 
Aickin, $3,000; to Bishop Simpson, $40,000; to James 
Long, $30,000; to his two daughters, $10,000 each, 
and to his two sisters, $15,000 each ; to the Methodist 
Church of Battle Creek, to pay off a debt, $10,000; to 
the Methodist Church of Pit Hole City, for remodeling 
the church, $10,000 ; to the Methodist Church in Plum- 
mer, for finishing off the church, $25,000; to the Metho- 
dist minister, Leach, if alive, $5,000; for a monument 
over his father and himself, $30,000. After providing 
for his just debts and funeral expenses, he provides that 
the residue of his estate shall be applied to whatever 
religious Methodist object his executors may think best. 
At the suggestion of Mr. Stewart, he provided that if 
any of the parties named in his will should contest or 
dispute the validity thereof, the bequests to such par- 
ties should lapse and form a part of his residuary es- 
tate. Accompanying the instructions for the first will 
was a schedule of his property, indicating the various 
places where he owned real estate, with their estimated 
value, and also various securities with their value and 
the place where they w’ere deposited, specified. 
Such were the dispositions of the will made on the 
10th of May, and all the circumstances of any signifi- 
cance attending it. As the two subsequent wills varied 
from this in only a few particulars, wre may as well ex- 
amine the dispositions of this the first will, because if 18 
they present no indications of mental unsoundness, it 
can hardly be supposed that they would produce any 
different impression when found in a subsequent will, 
while, if they should present such indications, the fact 
would be equally damaging, of course, to any subse- 
quent will in which they occur. 
Tlie first thing that arrests attention, is the small, 
ness of the bequests to his brothers, indicating as they 
seem to, some lack of filial affection, calculated to ex- 
cite suspicion. That he had reasons for such action is 
abundantly shown by the testimony in the case,—rea- 
sons which, however inadequate they may appear to 
others, show no marks of folly, and are such as have 
shaped the descent of many an estate. He was not on 
good terms with his brothers. He was displeased with 
their conduct; and, whether he was too exacting, or 
they too careless of his wishes, the feeling which it en- 
gendered was of the kind not likely to enhance their 
claims on his bounty. To Mr. Lindsay, he said, “1 
have been badly treated by my brothers,” and, of his 
elder brother, Janies, he said, “that he had given him 
upwards of fifty thousand dollars already, and that if 
he had all the money he had he would soon run through 
it.” He also told Mr. Lindsay that two of his brothers, 
[Frank and Richard] once came into his room and 
threatened to throw him out of the window, and that 
it was in consequence of their bad treatment that he 
got his first attack of hemorrhage. To leave them 
money, he said, would be no benefit, but rather an evil 
to them. With his brother William, to whom he irave 
nothing, lie had had some business relations which led 
to no good feeling on his part. The evidence shows 
that he thought his brother had dealt unjustly by him, 
and that for some time before his death he broke off all 
intercourse with him. 19 
The other legatees were mostly persons in whom he 
had become more or less interested by habits of famil- 
iar association, by favors or services received, or b}r 
sentiments of mutual respect and sympathy. Fanny 
Howard is a little girl, whose acquaintance he made 
while visiting his brother James, in Ohio, near whom 
her family resided. He was highly pleased with her 
ways, manners and little accomplishments. Charles 
Wilson was a fellow-workman with him in the Novelty 
Works, before he went to the oil regions. William 
Wilson he became acquainted with in Plummer, and 
they worked and sympathized together in the church 
and Sunday School. With William Jackson he got 
acquainted in Pittsburg. He was a blacksmith, and 
had lost the use of one eye. Mr. Leach was a Metho- 
dist preacher with whom he had become acquainted. 
Miss Prather is a sister of his partner, when he lived in 
Plummer; and in the course of a familiar and frequent 
intercourse with the family, he became acquainted with 
and interested in her. With the Lindsays he had been 
on intimate terms, making their house his home, in 
health and sickness, receiving from them, care and at- 
tention, and kindness that could not be purchased. Hr. 
Aickin was his physician, and as testators sometimes 
do, he remembered the doctor in his will. With Bishop 
Simpson he had been acquainted many years, meeting 
him from time to time, soliciting his advice, conferring 
with him on matters of mutual concern, and always 
professing the strongest admiration of the Bishop’s 
character. With Mr. Long and his family he had been 
intimate for several years, making his house his home 
whenever he was in Philadelphia. In the churches, 
for the advancement of which he provided, he had been 
strongly interested. He had worshipped in them all, 
and one of them he had helped to build. 20 
So far, certainly, there seems to be no ground of sus- 
picion. The testator devised his property, after the 
usual manner of men. For his mother, to whom he was 
strongly attached, and for the memory of his father, he 
provides most liberally. Upon his brothers he be- 
stows as much as he thought they would properly use. 
A part of his fortune he devotes to public purposes, 
selecting those in which he had been most concerned, 
both as a matter of personal feeling and regard for a 
sacred cause. The rest of his fortune lie distributes 
among his friends. 
O 
The next day, soon after breakfast, Dr. Aiekin says 
lie found him in a very excited state, walking up and 
down the room, having been smoking stramonium by 
his physician’s direction. Expressing a wish to see Mr. 
Lindsay, that gentleman came in, when the testator said 
to him, “ have you got that deed,” referring to tlie will 
he made the day before. Having obtained it, he looked 
over it attentively, and then tore it in pieces in an ex- 
cited manner, saying, “ Gentlemen, you must excuse me, 
I can not do this,” or words to that effect. The next 
morning he told the Doctor that he destroyed the will, 
because “there were sums of money left by it to par- 
ties which, he would not like his relatives to know of, 
as the amounts were out of proportion to tlie position 
in life of the persons to whom they were left.” Four 
or five days after, he requested Mr. Lindsay to have his 
will made again, and on being asked if he wanted 
any changes made, lie directed that the names of Fanny 
Howard and Charles Wilson should be omitted. On 
being asked if he wished for any other change, he said, 
no. Mr. Lindsay then said to him, “ I think you have 
left too little to your own family; ” “I think you should 
make up your mind to die in charity with your own 
friends.” He replied that they did not deserve it; they 21 
had treated him badly, and money would do them no 
good, but directed that $5,000 should be inserted for 
his brother James, $5,000 more for his brother Frank, 
and $10,000 for the use of a blind daughter of his 
brother James. This will was duly executed on the 
16th of May. 
Dr. Rea, American Consul at Belfast, who was called 
in by Mr. Lindsay to witness and authenticate this last 
mentioned will, says he asked testator if he appre- 
hended any contest over his will, when he replied that 
he did apprehend it. He thought his brothers might 
contest it because he had not left them all his property, 
adding, “ my reason for not leaving them more, is that 
they are not worthy of it, and it would do them more 
harm than good, for whilst I have been earning money, 
they have been swinging around me, instead of trying 
to earn for themselves.” Whereupon the Doctor gave 
it as his opinion that there were two legacies in the will 
that might, under such circumstances damage it, as 
possibly tending to prove undue influence, naming the 
legacies to Mr. Lindsay and Dr. Aickin. To this the 
testator replied, “then they must come out of it,” and 
directed the Doctor to have a new will drawn, precisely 
similar in every respect, with the exception of those 
two legacies, saying at the same time, “ I consider those 
legacies as justly due those gentlemen, and I would be 
very glad if I could give them the amount in any other 
way.” The Doctor then suggested that he might give 
them promissory notes for the same sums, which he im- 
mediately decided to do. Accordingly, another will 
was drawn, precisely like the last, except that these 
bequests to Mr. Lindsay and Dr. Aickin were omitted, 
and was duly executed on the 20th of May. 
In regard to the execution of this will, the testimony 
of Dr. Rea is remarkably significant. He says, “hav- ing finished the reading of the will, deponent asked 
testator ‘if that will was entirely to his mind,’ to 
which testator answered, ‘yes, entirely to my mind.’ 
Deponent then asked testator whether he had been 
moved by any ecclesiastical person or persons, to make 
certain of the bequests to ecclesiastical persons and for 
ecclesiastical purposes contained in the will, to which 
testator answered, ‘ no, that he had made them of his 
own free will and volition, without any suggestion from 
any other person.’ ” Dr. Rea also said that he visited 
the testator every day from the 20tli, as long as he 
lived; that they often conversed about the will, and that 
the testator always declared that he was perfectly satis- 
fied with it. 
Depositions were submitted to the jury, of the sub- 
scribing witnesses; of the person who drew the wills 
and attended to their execution; of Dr. Idea who be- 
came acquainted with the case by virtue of his con- 
sular office ; of an old friend, the Rev. Robinson Scott, 
who visited him occasionally during his illness; of Mr. 
and Mrs. Lindsay; and of his physician; and they all 
declare that, to all appearance, the testator was per- 
fectly rational and in posession of all his senses, except 
during the last two days of his life, when his mind oc- 
casionally wandered; nor there a single syllable of 
testimony of a contrary character. Certainly, then, 
there was no coma nor delirium, but it does not neces- 
sarily follow that there was no delusion. The testi- 
mony regarding it was only negative, but that must 
be considered as conclusive, in the absence of any 
evidence the other way. It was shown very clearly 
that his dislike of his brothers was not the offspring of 
delusion or of any morbid feeling. It was no sudden 
fancy, but a deliberately matured conviction that they 
had not treated him well, and that, such were their 23 
habits, much money would do them no good. Ilis 
story of his brothers, on one occasion, threatening to 
throw him out of the window, if not literally and entirely 
true, had a broad foundation in fact. One of the broth- 
ers, in describing the scene referred to, testified that 
they did not exactly threaten to throw him out of the 
window, but only said, that if he were not his brother, 
lie would throw him out of the window. The bequests 
to the Methodist churches presented indications, the 
contestants declared, of mental unsoundness, because 
they are so large as to be greatly, even ludicrously dis- 
proportioned to tli'ose churches’ several necessities. Not 
only was $25,000 a sum that could scarcely be used up 
in finishing the church in Plummer, as directed in the 
will, as the original cost of it was only about $3,000, 
and all needed repairs could be made for $300 or $400, 
but the town itself wras then in a decaying condition, 
having now only some fifty or sixty houses. Pit Hole 
is but little larger, and as one witness testified, $10,000 
could scarcely be put upon it, and make a church of it,, 
and that place also had gone down. It appeared too that 
$5,000 would have been sufficient to finish and repair 
the church in Battle Creek. On the other hand it was 
testified that the testator was strong in the faith that 
those places would revive, and if in this particular, he 
was more sanguine than the circumstances warranted, 
the fact should be attributed to a natural partiality for 
places connected in his mind with agreeable associations, 
rather than to any form of mental disease. And this 
feeling, no doubt, rendered him careless as to the exact 
amount that might be immediately required, knowing 
that any surplus would be usefully disposed of. In 
this connection, it may be stated that this kind of dis- 
position of his property was in accordance with views 
he had previously expressed. Bishop Simpson testi* 24 
fled, that in conversation with him some years before 
his death, he, the Bishop, suggested that the testa- 
tor would do much good with his money by en- 
dowing some literary institution. Shortly after he 
wrote a letter to the Bishop, in which he said he pre- 
ferred to give his money to Sunday schools and poor 
churches. 
I have intimated that during the testator’s last ill- 
ness, there was nothing in his conduct or conversation 
indicative of mental disorder. It appears, however, 
that about the 25th of May, five days after the will 
was made, he asked Dr. Aickin, “ whether he, the tes- 
tator, could not get a ship to charter to take him and 
deponent, and the nurse to America.” This was al- 
luded to by counsel as indicative of a disjointed mind, 
but to me it conveys no such meaning. If he thought 
his case not quite so desperate as others did, it was a 
kind of self-deception not uncommon, by any means, 
with the subjects of pulmonary disease, and to a man 
of his means the expense of such a step could not have 
been a piece of reckless extravagance.* To wish to see 
his mother once more, and breathe his last at home, 
scarcely looks like consummate folly. 
The mental disability supposed to have been pro- 
duced by the pulmonary disease, was spoken of in very 
general terms—rather as a constructive than an actual 
disability. The experts who staked their reputation 
upon its existence were not even asked to indicate what 
faculty of the mind was at fault, or what disposition of 
the will, or incident in the making of it, “ sounded to 
* The friends of a patient once under my care, having concluded to take 
him heme, and wishing to avoid the exposure and other inconveniences inci- 
dent to a passage by the regular steamer, hired one expressly and solely for 
the purpose, though not so able to afford the expense as Mr. Duncan was. 25 
folly.” Had there been any coma or delirium—the inev- 
itable results of undecarbonized blood—there would 
have been abundant reasons for asking these questions. 
And thus we have the extraordinary case of medical 
experts, called to testify as to the competency of a tes- 
tator, telling the court and jury what, in accordance 
with their pathological theories, ought to have been his 
mental condition, not what it really was, as shown by 
the circumstances of the transaction. One might search 
long before finding a parallel to a case like this. In 
fact, the counsel, in order to sustain their position, were 
obliged to rest upon another theory totally independent 
of the characteristic effects of vitiated blood. 
Soine stress was laid on the opacity of the arachnoid, 
as if that ought to have given rise to some mental dis- 
turbance, and I regret to say that the idea received 
some countenance from the contestants’ experts. It 
may be dismissed with a single remark. Every one 
who has made many autopsies will tell us that such 
opacities are witnessed in a large proportion of subjects 
where the mind has been clear and sound to the last. 
In this case it signified nothing whatever, respecting the 
mental condition, as was stated by the experts on the 
other side. 
What was relied upon more than anything else for 
the purpose of breaking this will, was the charge of 
undue influence. To appreciate this charge properly, it 
should be understood that influence does not necessarily 
vitiate a will. In a large proportion of wills, the dis- 
positions are more or less the result of influence, and if 
this were oftener so, there would, undoubtedly, be 
fewer instances in the world of unjust or foolish wills. 
When a man comes to distribute his estate among those 
who seem to have claims upon his bounty, he naturally 
seeks the advice of others, and is governed, in some de- gree, by their suggestions. Such au influence works no 
injury to the instrument, in the view of law or of com- 
mon sense. On the other hand, in the case of persons 
whose minds have become weakened by old age, by 
sickness, or by congenital infirmity, the law looks with 
great jealousy on the exercise of any influence, and es- 
pecially by those who are benefited by it. This it is, 
which may become what is technically called undue in- 
fluence. The law supposes that in the abnormal condi- 
tions here mentioned, the mind having lost, in some 
degree, its proper stability and clearness of perception, 
readily yields to the suggestions of others, and thus 
makes testamentary dispositions very different from 
such as it would have made in its ordinary state of 
health. The charge of such influence must have for its 
foundation satisfactory evidence of mental weakness ex- 
hibited in othei matters than those directly connected 
with the testamentary act. A prima facie case must 
be shown, before the alleged influence can be pro- 
nounced to be undue. In regard to this distinction, 
juries are apt to be misled, willingly or otherwise; and 
in the present case, probably, the result of the trial 
Avas the offspring of that sort of mistake. That influ- 
ence Avas used, nobody denied, but the evidence respect- 
ing the mental manifestations of the testator during the 
whole month of May, furnishes no proof of Aveakness 
or decrepitude, of freaks or fancies, and consequently 
fails to afford the requisite foundation for a charge of 
undue influence. Even if such a foundation had act- 
ually existed, the charge Avould fail, because the test- 
amentary dispositions, for the most part certainly, 
obviously originated in the independent exercise of the 
testator’s own will That such Avas the fact in regard 
to the bequests to his brothers, and to most of the leg- 
atees, can scarcely be doubted, because they indicate circumstances not likely to be known to those around 
him. The influence was all in favor of the brothers, 
not against them. It effected an addition of $5,000 to the 
legacy of one, and $10,000 to the little blind child of 
another. At the suggestion of others, he revoked cer- 
tain bequests, and substituted for them direct gifts, for 
reasons that would have amply justified the change 
had he been unequivocally sane. 
The idea of undue influence is simply preposterous 
when we consider who the persons were who had ac- 
cess to him, and the only motives by which they could 
possibly have been governed. If the Lindsays or Dr. 
Aickin had conceived any mercenary designs, their 
policy would have been, after securing their own por- 
tions, to propitiate the heirs-at-law, by turning the rest 
of it into their hands. The Rev. Robinson Scott, who 
visited him in the early part of his illness, might possi- 
bly have advised him to make large bequests to Bishop 
Simpson and Mr. Long, as being members, with himself, 
of the Methodist Church, though he says emphatically 
that he did not; but had he done it, he could not have 
better served his purpose than by discouraging every 
other bequest than those made to the heirs-at-law. Had 
this gentleman been disposed to exercise any influence, 
it would have been, most likely, to obtain an endow- 
ment for the college with which he is connected—an 
object towards which the testator had seemed to be 
favorably inclined at a former period. How Dr. Rea 
used his influence, Ave have already seen, and it is 
scarcely possible that he could have been led to use it in 
any other way. This disposes of the charge of undue in 
fluence, it being as groundless as that of coma and of 
delirium, and thus nothing remains to impair the valid- 
ity' of Mr. Duncan’s will. In connection with the no- 
tion, so steadily held up by the contestants, that sinis- 28 
ter influence was exercised to turn this estate into the 
hands of Methodist people, the reader must understand 
that of the few persons above mentioned, as having ac- 
cess to the testator, one only, Mr. Scott, belonged to 
that persuasion.* 
Here ends tlie ungracious task of exposing some feat- 
ures of a trial little calculated to shed much lustre on 
the Medical Jurisprudence of our country,—a task un- 
dertaken only that its lessons might not be lost on 
those who, by virtue of their profession, may be called 
to assist as medical experts in the administration of the 
law. Let it teach them that in that capacity they are 
bound by more than the Hippocratic oath, to serve as 
faithful ministers of science, casting aside every ignoble 
preposession born of the time or the place, and laying 
upon her altar the offering of an intelligent investiga- 
tion and an honest purpose. 
* The reader may be interested in knowing that the jury disagreed, stand- 
ing ten against the will, and two for it. A compromise was then effected.