¶11. We cannot say that the judge who tried the cause exercised the discretion confided to him erroneously, in excluding evidence of the mental condition of the plaintiff eight months and more after the assignment, and after she had been confined in a lunatic hospital. Commonwealth v. Pomeroy, 117 Mass. 143, 148. White v. Graves, 107 Mass. 325, 327.
¶22. The plaintiff’s first request for a ruling was misleading in form, and might well have been understood to mean that the plaintiff could get rid of the burden of proving insanity at the moment of the assignment, by proving it at some earlier time. This, of course, is not so. The plaintiff might have made out a prima facie case in that way, but the burden of proof was on him, and did not shift. Howe v. Howe, 99 Mass. 88, 98. Powers v. Russell, 13 Pick. 69, 76. Crowninshield v. Crowninshield, 2 Gray, 524, 534. See Staples v. Wellington, 58 Maine, 453, 460. The jury were instructed that, if insanity not due to a violent disease was proved at a time previous to the contract, at a period not too far back, the insanity was presumed to continue, unless there was evidence to control that presumption. This was all that the plaintiff had a right to ask.
¶33. The second request was open to the same objection as the first, and further undertook to define a lucid interval in a way which the judge was not called upon to follow. His statement of the defendant’s contention plainly imported that, if the plaintiff had proved previous insanity, then, in order to find for the defendant, the jury must find that at the time of the contract the intestate was of sound mind, and able rationally to understand and decide upon the terms of the contract. See Allis v. Billings, 6 Met. 415, 421.
¶44. The fourth request is more or less sanctioned by some cases in which a judge, whose duty it was to decide both facts and law, has laid down delusion as the test of insanity upon which he should act. But it deals with a question which is mainly one of fact, and one upon which courts have been increasingly *183unwilling to lay down sweeping rules. Whether Mrs. Wright was competent to make the assignment was a question of degree, to be determined by the jury on all the facts and circumstances of the case. The court followed the usual practice, in leaving it to the jury, in general terms, whether Mrs. Wright was of unsound mind, and incapable of understanding and deciding upon the terms of the contract. See Townsend v. Pepperell, 99 Mass. 40, 46; Whitney v. Twombly, 136 Mass. 145, 147 ; Staples v. Wellington, 58 Maine, 459; Dennett v. Dennett, 44 N. H. 531, 538; Gardiner v. Gardiner, 34 N. Y. 155; Smee v. Smee, 5 P. D. 84; Boughton v. Knight, L. R. 3 P. & D. 64; Banks v. Goodfellow, L. R. 5 Q. B. 549; Smith v. Tebbitt, L. R. 1 P. & D. 398.
¶55. The third and fifth requests were given in substance.
¶66. The statement in the charge, that evidence was not admitted of the proceeding by which Mrs. Wright was sent to a state lunatic hospital, and that it was not to be considered, was not called to the attention of the judge, and the error is not open upon a general exception to the instructions set forth. McMahon v. O’ Connor, 137 Mass. 216.
¶7 Exceptions overruled.