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NOVEMBER 7. 1930 '{ _ if rl~|E CHARl.()'l’l‘l-:TOWN GUARDIAI' _ _ ratsrilrviz

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S dered the testator to bed procured

IUIJGMENT IN

DUNTESTEU Will

-&_ '

Following is the text of the jugs-

ment delivered in the Probate Court on March 28th last in the matter of the estate of Alfred McWilliams late of Wcst Cape in Prince County, Re- tircsl Farmer, deceased, testate. '

get-ree of Return of the Citation to Prove the Will of the Above Named Deceased per Tesles or

‘ _in Solemn Form.

'rhis Is an application to prove in

solemn form the will of Alfred Me- Wiiiiems of West Cape in Prince County. deceased, made on the 27th February 1928. Testator died on the mud April 1928 and on the 2nd May following Probate in common form ras granted by thi Udllri to William _wagon Mowllllams of West Cape, a :rrphcw of the testator and Dr. Jam- es B. Champion of 0‘Lcary in Prince county, the executors named in the viiil. Subsequent-ly Mrs. Jane Lid- ltone of Cape Wolfe, a niece of the :rltator tiled a petition and took out 1 citation calling upon the executors to prove the will in solemn form. This is sufficient under our practice to put the executors to such proof wthcut the Petitioner having to file rllrfratiolis or pleadings and when life time is fixed for the hearing al- though there are no (_-pposlng parties so designated the executors, so far :I lclst as the tendering of evidence is coziccrncrl, proceed virtually as piaititiiis and the petitioner as de-_ leiidnnt. The hearing was a protracted one? ny reason of the volume of evidence pu; in. but when two versions are given in detail of all the circumstanc- es .surrounding the making of a will and of actions and declarations of the testator extending over a con- siderable period of time to show his athtude of mind and testamentary luzentions the evidence inevitably must be extensive. What may be de-

scribed as the back-ground of the

'picture from which I am to decide whether this will is a valid one or not is .<hortly as follows:

The testator was e farmer and mill

owner living in West Cape, Prince County and for some years repre- sented _his district in the Provincial L'.‘;zi.=latln'e. He sccms to have been a careful and successful business man and at his death at 87 or 88, years of ago left an estate of upwards ' nf $70,000.09. In or about 1908 thc testator in.1;'rlcd his house-keeper Ciara winsloc, a widoiv, and in Oc- tober 1012 leaving his nephew Wil- liam Nelson McWilliams, who had been living with him in possession of

the home and farm at West Cape he | and his wife moved to Charlottetown r and took up housekeeping there. They remained in Charlottetown un-

tember 1925, but during the interval, te=tatar paid semi-annual visits to] his old home when he would remain lor a week or two with William Nel- ion and (the latter having married In 1913) his wife and attend to busi- ness incident to the collection and

rare of his investments thrtugh the disirict for which purpose he seems to have kept a room ns a sort of of- fice for lvs exclusive use. After his vifoks death he remained in Charlot- lctown with his sister-in-law, Norah Mcwllllnms, the mother of William Nelson. keeping house for him for a tear when he sold his Charlottetown htus: and returned to West Cape to take up his abode at his old home with William Nelson and hL=. family. The following spring testator spent some weeks in Charlottetown visit- llla friends, Mr. and Mrs. Frank 'Honey and than went west again to Olcary for rs short stay. Before re- Wfilillg to West Cape he came down to summerslds (which is approxi- mately half way between 0'Lesry and Charlottetown) on the 30th of April H I" had a will drawn to his instruc- thns by Mr. Morley M- Bell of the firm of Bell dc Tanton, Solicitors, Eummerside, who had been accus- tomed to do his legal business while he lived at West Cape, and executed I-', in duplicate the some day, taking the original will with him and leav- illg the duplicate original with his

l0llritgr_

ln this will after bequeathing lega- zies amounting to 91500.00 he left the residue to the nephew, William Nei- lf'1\( and appointed Mr. Bell and Wil- liam Nelson as the executors. Dur- lnk the year following testator while living at his old home paid occasion- ll visits, each of some weeks dura- Nun. to the petitioner Mrs. Llastons, the last one terminating on Febru- UY 4th. 1929. During this last visit, '°°°“ilhs to petlI.innsr's evidence, the _ t°‘”"'“°°1` Save her a memorandum of brfluests for an intended new will """°l|lY different from that of the “ll of auth April previous. - - -

turned to William Nelson's and ts'

ss called to attend him there. He

or I s. nurse, and from then on the nurse remained in constant attendance un- til his death. On February 27th ac- oordirig to the evidence of the exe- cutors Dr. Champion visited the tes- tator, and drew the (will now in queg- tion which differed only from the will of -30th April 1927 in that two beneficiaries, who are each bequeath- cd $250.00 1e8“°>' in the earlier will, are not mentioned in this one. and Dr. Champion is substituted for Mor- ley Bell as a co-executor with Wil- liam Nelson. -

The important period to be regard-

ed in relation to this case Is that fol- lowing the making of what I shall refer to as the Bell Will on April 30th. 1927. The relevant mnftcrs prior to that time are any that tend to show the relations existing between the testator and William Nelson Mc- Williams, who may be referred to m .

|; - _ _

N W

ore shortly as William Nelson, on he one hand and the testator and rfrs. Jane Lidstonc on the other.

ithout discrediting the evidence of William Nel.son‘s wife who, aside from having a considerable interest

in the outcome of this application, would naturally gloss over objection- able actions of her husband in his dealings with others and put a more lenient interpretation on an attitude

which might; be the subject of com- plaints in others, I have no hesita- tion ln finding that generally speak- ing the relations between the ties- tator and William 'Nelson were not harmonious. Testator complained frequently and gave specific instanc- es of Wm- Nelson‘s harsh, and it would seem, ungrateful treatment of him. indeed on two occasions while living together at Wcst Cape things came to such a pass that testator put William Nelson out of the house resulting in the latter's absence from the home. Though William Nelson' returned each time it was not appar- i entiy at the request of the testator. Further there is a preponderance of` evidence that the reason testator _moved to Charlottetown was largely at least because of the unpleasant; relations existing between him and-

William Nelson-and more particular-1 ly between the former's wife and* William Nelson. Notwithstanding all this there is no doubt in my mind _ that at least up to the last year off his life the testator had a strong at- tachment for his nephew. He tooki

the latter, when a small boy, tp live with him and from that time on! seems to have acted in the capacity‘ of foster-father to him. Evidence ofi the attachment is seen in the fact of such a situation and is suggested by the production by William Nelson

on the hearing of two deeds dated) July 5th, 1899 and Dec. 19th, 1905.5 respectively, neither of which is reg-l istered, in the former of which tes- tator purported to give his whole farm of 514 acres and in the latter 250 acres (strangely enough this was half cf the farm already given in the other deed) to William Nelson. Evidence of the- attachment is also seen in testatorb statements to var- ious people on different occasions as to what he had done or was going to do in the way of giving property `to William Nelson. _Finally there is the Bell will which from the evidence as to the circumstances surrounding the

making of it I can easily presume I was the will of a competent audi capable testator.

The relations between the testator

and Mrs. Lidstone were always har- monious. On a view of the whole evidence the statement that she was his favourite niece does not seem an exaggeration. As a modification per- haps of the inconsistency of testat-

or's actions and his attitude towards I these two relatives the evidence indi- | cates that propinquityincreased tes- tator’s regard or affection for Mrs. Lidst/one but 'lessened his attachment

to William Nelson.

It is necessary to review the period

following the making of the Bell will in April 1927. 'Testator on leaving Charlottetown in September 1928 had left money and bonds amounting to $60,000 or $70,000 in a safety deposit box or vault in the Bank of N-ova Scotia and left the key with his friend, Frank Tinney, senior assist- ant to the superintendent at the Dominion Experimental Farm. In the summer of 1927 William Nelson and his w-lfe both knew of the Bell will having been drawn and that the testator intended giving practically all his property to William Nelson. During that summer and subsequent months testator visited Mrs. Lidstone from time to time for periods extend- ing from two fn four Or five weeks including periods in August, Novem- ber and the following January. It is during these visits that according to the petitioner! witnesses the tes- tstor complained bitterly of William

Nel.son’e actions as the result of tes-' tator's refusal to transfer his bonds to' William Nel.soi\'s name md move them up to the Ilank’st O'Leary. In answer to the question by the learn- ed counsel for the executors whether It h correct that in spite of all the

week later Dr. Champion of 0-muy lnotwithstundlng his absence from w

i-ator had with William Nelson and

the McWilliams Home for nine weeks he makes the (Bell) will naming William Nelson as practically the sole beneficiary Mrs. Lidstone says: "Yes, I think lt is. But he did not know at that time when he made that will-it was shortly after he “N119 UD from town-and William Nelson had not tried then to get the money and bonds out of the Bank In Charlottetown. It wasn’t a. year. When he would not give up the mon- ey and bonds William Nelson got abusive."

As an explanation of counsels sug-

gestion that the Bell will indicated that the alleged ill-usage and un- pleasantncss by William Nelson did not affect testator's affection for him very much Mrs. Lidstone goes on: "Yes, lt did. But he said he was frightened of him and that was the reason he was doing what he did. He

told me that in November 1927. , He told me in August 1927 and he told me in November of 1927, both. In August he told me when he was down to my house visiting me."

Frank Tinney made several visits

to Mrs. -Lids-tone during that sumn-;er and says that testator complained to him then about William Nelson, that things were not as good as he had hoped for, not very pleasant and William Nelson had calfed him out of his name. Testator seemed to feel pretty badly and the last time wit- ness saw him (September) was cry- ing about it.

It was during the November visit

Mrs. Lidstone says that testator in- formed her about the bonds being in Cllufge of Tinnei’ and the banker at Charlottetown and that William Nel- son wanted them transferred to the o'Leary Bunk in william Neisons' name, but that he. testator, was not willing to do so. "He said he was going to leave them in the Charlot- tetown bank witn Mr. Tinney and the banker and he was going down in March and going to make a new will." He was crying. He said it was plain to be seen that all he wanted him to come there for was to get his money." Letters between the testat- or and Tinney dated November 14th and November 15th respectively showing that testator considered moving the bonds and his decision not to move them were put in evi- dence. Testator further informed her that as a. result of his refusal to move the bonds william Nelson used in- sulting language to 'him and that William Nelson's children, especially the oldest girl' Verna, were cruel to him and were not admonished by their father.

During this November visit Mrs.

Lldstone's son, Guy arrived home from British Columbia. Testator com- plained to him of the treatment he received at the hands of William

Nelson and the children and expres- sed regret that he had ever sold his

place ln town and moved_up.

David Coughlin, a brother of Mrs.

Lidstone. speaking of the November period said, “I think I saw him every time I came there for a visit. I was not able to work and was doing no- thing but driving around”-“Alfred McWilliams told me-I seen him cry- ing a dozen of times-and he told me

he_ was sorry he ever came back and might have known what he was go- ing to be up against. He said they were nice to him for a while until they got him back. Then he said hc could not live there.-He told me he was going to leave them and leave them soon-'if my sister would take him he was going to live with her."

Testatcr’s last visit to his niece

was ln January when he remained for a period of three or four weeks until February 4th. On this V151(- Mrs. Lidstone .says testator decided to stay with her and not return to William Nelson's because of condi- tions at the letters place. “He was not going back to William Nelson's any more. He went- home to get his will. He said he was going to burn the will and make a. new one and to get some deeds and mortgages and he was coming down to stay with me. He said he was not going back again. 1-ie said they cursed and was never done growling at him for not getting the bonds-because he would not transfer the bonds to O'Lcary in William' Nelson's name." He men- tioncd this "on the last visit. He said

the oldest girl used to scrap and threaten him when he chastised (wit- ness means admonished) her. She tried to jiunp on his feet." This wit- ness further relates "he said when he asked him why he did not SW9 him the bcnds-when William Nel- son asked Uncle Alfred-he told him he was not going I/o give them to him. William Nelson said he could get the work all done at 0'IAlry I0! nothing by Mr. Bleek. When Uncle Alfred would not give the' bonds Wil- liam Nelson said he was no better than his dog. William Nelson said that Uncle Alfred was no better than a dog; that Uncle Alfred was just keeping the bonds to give to other relatives, and they would get a share and that he was looking aft- er him and he would get nothing out

Nelson ordered Uncle Afred to go in- to his kennel out of the kitchen. He meant that sitting room. Uncle Al- fred wld-me all this and he told me he was not going to stay where he lwouid be enued wuusrn Neisons ` dog," _ _

Guy Lidatone says that in Janu-

ary testator told him William Nelson was getting worse all the time to him, that he was making o. regular hell in the house all the time and then when testator would speak of things William Nelson would com- pare him to s. dog and order him to his kennel.. While testator was thus C°mDlalnlng “he used to crysabout it. Used to sob. I have often seen tears rolling down his cheeks." Guy also corroborates his mother as to testator! complaints about William Nelson‘s daughter Verna and the oth- er children.

Against this accumulated evidence

I have only ‘that of Mrs. William Nelson McWilliams and Mrs. Cross- man, a washer-woman In the form- er's house- N-either William Nelson nor the oldest girl Verna came for- ward to deny or explain the old man‘s allegations but they leave s general denial of _them to Mrs. McWilliams who say: that her husband and tes- tator always got along well. Obviously she is not in a. position however to de- ny from her own knowledge many of the sped* eomplaints. _This is ap- parent fiin the form in which she gives her evidence on cross-examin- ation. I quote from that part of her evidence for instance on the ques- tion of the` bonds which is subsequent to the making of the Bell will.

Q. "And didnt your husband have

another row or unpleasant situation with Alfred McWilliams when Al- fred Mcwilllams decided to move his bonds from Charlottetown to 0‘Leary?" A. (After it is made clear to witness that the question refers to the autumn of 1927). “I know no- thing about that.” Q. “Was11‘t the matter of the bonds discussed thcn about bringing them back from Charlottetown?" A. "Not that I know of." Q. “And didn't _your husband tell Alfred McWilliams that llfr. Black of O`I./eary the manager there. could look after the bonds for him without costing him anything?" A. “I know nothing about that. Positive. Never heard it." Q. “And that there were hot words between your hus- :nnia and Mr. Alfred Mcwuiisms \1ien Alfred McWilliams would not have the bonds brought back?" A. “Nothing of the kind." Q. “And didn’t your husband say to Alfred Mcwil- liams "lf you won't do as I wish you to do. some day you will drop out and they will ali get as much as I for doing nothing and I have the dirty work to do?" A. “Never heard him s_ay it." Q. Would you be sur- prised, Mrs. McWilliams, if it can bc shown that Alfred McWilliams him- self told that to people?" A. "I know nothing of it. Never heard it." Q. “And that Alfred McWilliams made reply to your husband, “You will have to behave yourself or you have had all you are going to get?" A. "I nev- er heard hlm say that kind of words when he was in the home. He never

made such a statement."

Mrs. Grossman who worked at Wil-

liam Nelscn’s two days a week said that she had some conversations with the old gentleman early in the fall or during the winter some time before he got sick. She said testator seemed to enjoy himself very well where he was and himself said he was well satisfied where he was- Asked what testator said about his business she says: “He just told me where he was going to leave his money and his property to William Nelson McWilliams with the excep- tion of a few bequests he was leaving to some others." This evidence to be of assistance should have a. little more light on the circumstances sur- rounding these conversations. Why should the testator volunteer the re- mark that he was well satisfied where he was? If the remark was not vol- unteered why and by whom was the subject lntroducd? Were the conver- sations in the presence or hearing of william Nelson or his wife? It may be stated at this point that unques- tionably the conditions under which the old man llvcd at William Nelson`s that last year were not wholly or at all times unfavourable. There is not a suggestion throughout the whole evidence that Mrs. William Nelson was unkind to the testator. Indeed there is evidence that she rendered him many services which by reason of his age and fnhrmlties he was un- able to perform for himself. Before this case was closed one of the learn- ed counsel for the petitioner express- ly informed 'the Court that they' made no allegations in any way re- flecting on Mrs. win. Neuona bennv- iour or conduct towards the testator. Notwithstanding this it is not denied that the testator did make several visits to Mrs. Lidstone seemingly in- creasing his length of 'stay each visit The weight of evidence convinces me without doubt that the testator did make the complaints alleged

during these visits.

says was made on that day partially by the testator and partially by, her under his directions headed with his

'signature which he told her was to lbs kept by her as a memorandum of I bequests he wanted to make in a new will which he intended making in March. This document sets out the names of relations of the testator and others with sums set opposite them respectively varying in amounts from $100.00 to $20,000.00 and total- ling upwards of $55,000 and con- cludes "and rest to pay my Dr. Bill and funeral expenses and keep my grave, also C1ara's and fathers and mother's, sisters and brothers graves in repair for Mrs. J- W. Lidstone."

On grounds which I do not deem

it necessary to set out the learned Attomey General ridiculed the pro- bability of this document being genu- ine. Intrinsically it does not invite increciulity. -It is not denied that the names mentioned in it were all of people who stood in such a relation to the testator as formed the alleg- ed and reasonable ground for his

making them the objects of his boun- ty. Mrs. Lidstone and her son Guy. who corroborates his mothers evi- dence were each examined and cross- cxamined at length on this document and every detail of it. A comparison of the signature at the top shows many points of resemblance to that of his letter of November 15, 1927. If there is evidence which might be ex- pected to make me doubt the authen- ticity of this document it is the state- ments of the Testatnr to others about the petitioner. Speaking of this Dr. Champion's evidence is, “he said- this would be o. fcw days after I made he will--when I came back to his louse. He mentioned that Mrs. Lid- stone had been there to see him. He said he knew she was expecting or locking for money or words to that cITect, but as she had got $500.00 out of his wife‘s estate, besides some oth- cr things. that was all he intended

she should have."

l l

The nurses evicicnce is to the some

cffect so much so as to suggest that it is to the same occasion that they both refer. Mrs. McWilliams says that Testator told her practically the same thing on different occasions both before and after February 27th, 1928. Although the facts as to Mrs. Lidstone receiving this property from

the testator‘s wife appear to have been as statedby the old ma.n I re gard the evidence of these witnesse as amounting to no more than this: Alfred McWilliams was annoyed that { nve hundred dollars of his wifes money should go to some one other than himself and when the matter' came or was brought to hLs mind his _ pique was directed towards his niccc' as thte recipient of this property, and

I do not think that these statements made by Testator are irreconciliablc with the whole evidence which cos- tly convinces me that normally tho Testator had a warm feeling for his niece.

I have little difficulty in holding

that Exhibit 10 is a memorandum made in the circunistanccs and for the purpose outlined by Mrs-_ Lid-

stone. Testator went back to' William

Nelson's on February 4th to mako preparations to return and stay with Mrs. Lldstonc.'The day for the return was definitely fixed as Sunday, Feb- ruary 12th, when there was to be u 'iinner in celebration of Mrs. Lid- stone’s birthday and it was arrang- ed that David Coughlin should call at william Nelsons for testator and

drive him over. On Saturday even-_ ing, the 11th, William Nelson drove' to O`I_-cary and brought Dr. Cham- pion. who ordered testator to bed

because of a cold and swollen limbs; and procured a nurse for him. Dur- f ing the interval between the 4th and 12th Mrs. Lldstonc talked each day] to the testator over the telephone but there is direct denial in the Mc-

Williams Household as to there being i any telephone conversation between Mrs. Lidstone and the testator on Sunday morning. Shortly, the evi- dence of the Lidstonc household is

that David Coughlin 'preparatory tai driving over for testator had Mrs. Lidstone call up William Nelson's house to insure testator's being ready so that Coughlin's horse would not be kept standing in the cold. Mrs. Lidstone called up the McWilliams house and talked to Mrs. William Nelson who brought the testator to the telephone. In answer in her In- quiries testator told her about the coming of the doctor and the nurse and that he could not visit her. Mrs. Lisstons insisted that ne was not sick. Testator was crying and said he knew he was all right to come but 'they would not let him come. Guy Lidsfone corroboratrs the evidence as to his mother's part of the con- versation- On the other hand Mrs. Mrwilliains and the nurse each de- ny positively thst the testator was at the telephone on Sunday, insisting that he was not in a condition tol come down stairs where the tels- phone was. The evidence is that on the arrival of the nurse at 9 o"clock

Saturday night testator was lying on the sofa down-stairs and had to be

:A I

I come now to February lst. 1929.

of it." Q. "Was the word "kennel"

`~ °° "bww on an :queer re-

aisagroemsat and lihvkslsatnou us-‘

used any timl"? A “Yll. WUUIIU

Mu. Lidstone produces a wrt Sui memorandum (Exhibit 10) which she

helped upstairs to bed by William Nelson and a neighbor John M¢Pber- “

4

Q- L.;

#199

w(n1iut

son. In the circumstances I may rely upon the rule of law followed by thc full Court on appeal in the Saskat- chewan case of Watt v. Watt. 10 VV.L.R. 697 and ‘c_“ the :ttltlioi'itIc.‘; there cited that affirmative evidence of a conversation is rather to hc bo- lieved than evidence denying it as

reason why I credit the :_-i':ry of Illia conversation. The evidence is

E;

I

against the fact of its havinf: taken .<'oEn'n:=.r_\ :'.;h it v._il iv ;»rt:,u~r to_'vif,'ilanI; efirc of the Court in invc-;»

place on Saturday night after thc

arrival of the nurse. Yet the nurs: vw -it ‘ ~ ' -' ~ 1- 1' w I-wr-I 'Continued on Page 7)

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v _ra 111'.: .»_ .-1 I. i-=_';;ic- that ing a iahd will is on the person pr 1

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'-"ilu iam' l~` rn 1:: r.~~_5fl_irir»_ lil;c,<lisch:r;'_':::l _b_'.' p;'oaf of cniiayity :-:I/_ tl‘;1t_" ('11 i.ij' 'iii' lin: f- iz-.1~. on im-itlie i-ict of r\>:-"c\lff.un; il'o:i1 \~.l'lf'. r:i*'.‘_~l1,ii of 11. »"'n`. ' 'Arm i>i»t\',':-#lil the ‘<nn\\_'l':<il:-' ol' and ;i.`.-olit to 1-L M1211. l;.'l_‘.e.'vr\ :hi iii-\ iv:»--.frlv-1*; also r-aiitc‘iiI,'» by Iliu I-:z\'-t:‘.loi' will br: ll ~

,i\rlr:=, T-l.:\_'.'.iI ri- - ti'~r._-' .<i~_I"<-i1nerl_’FIio fact of :1p:rrt_v prrpai‘i:`.1

witnesses to the latter may have for- | lrcr-_“ii hr=_\: ‘ no is :ri i':~o ,t-:=i|\'r‘i'- a will with a legacy to himso-lf is at gotten the facts. There is anoilicr|.'.1‘i",-1 ali 'wi i 7'; . lil ‘~no_ _ nvrst o_'_l_v mzo ot :-iisgiicinn of inure

B?i-f,r- rI'~_"; \ "1 1 . 3’ ~r' ~'l vntl-E or l(\sf;'\\'€‘i;_'lit accnrdilipf '.1)'thc vii#

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