PAGE EIGHT

PRINCE EDWARD to-niv - sir.

SHOWINGS

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VV. M. S. ANNIJAL MEETING

The annual meeting of the Woman's Missionary Society of the Kensington Presbyterian Church was held in the school room of the church on Wednesday afternoon. June 7th.

The devotional period 'was con- ducted by Mrs. James Jardine and closed with Hymn 460. The presi- dent. Mrs. Brewer Linkletter then took charge of the meeting. The secretary read the minutes of last meeting which were approved. The president addressed the meet- ing and thanked all the members for their help and co-operation during the year.

The regular business for the month was taken up. After some discussion on items of business the treasurer. Mrs. A. G. Henry gave a very encouraging report, financial- ly. The secretary, Mrs. A. Hi.ltz's report showed a very satisfactory year's work done.

All other reports were very en- couraging. especially the Mission Band under the care and training of the president. Miss May Walk- or, and other helpers.

The following members were

elected: President-Mrs. Brewer Linklet-

ter.

Vice-President-Mrs. John Walk- or. Treasurer-Mrs. A. G. Henry. Secretary-Mrs. A. lliltz. Corresponding Sc-ci'clar.v-Mi'a. I. W. Jardine.

Message Secretary-Mrs. Lorne Dunning.

Home Helpers Socri-lary---Mrs. D. L. Beairsto.

Organist-Mrs. R. S. Humphrey.

Meeting closed with the Lord's Prayer in unison. A social hour followed and was much enjoyed by all.

NOTICE

Anyone caught fishing or tree ing without permis- sionpadisi the Matheson pro- perty. formerly known as the Berrigsn property. Bris- tol, will be dealt with ac- cordingly.

MRS. DAN p MATHESON Bristol

BUT

IL)... --..n.- 9.. .. lune-4' - Viv-vi :--.

GOLLV; UNCI-I IISVJ I TIQEOJTI 2&0 i RAISE RABBITS AND SELLIM MR PETS: T EVERYDOUV KIA

WIL LNOU DRIVE. IN T65

NTOTD EAT'EM- VWOD5?

iNlLLtlAOU'l?E. A

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HAD. l.iFI wiLi.Blsi D on

fl-IE GUARDIAN. LCHARLOTTETOWN

in iliiiiriiiiii GUARDIAN

LGINT8: MONTAOUB: Harold I'.

Stownrt. Mill Ilorrlot AGENT GEORGETOWN:

IAN-I7. lithe. Ills. Inca Weldon. Loren.

Tho Guardian may in

up Georgetown: The Post Office:

following pieces In Montague: sun I. A.

bought It on: of ca. I-lowollnii Ian. clay. to lourlai no

E. Ilcllllil I don.

..oa'rrrr;o FOOTWEAR um Montague Shoe store.

..'tAPP0lN'l'El) T0 PASTORAL CHARGE - Mr. John MaoLeod. Prince of Wales student, son of Mr. and Mrs. A. A. J. MacLeod of Kinroas has been appointed to a United church charge. located north of sudibuiy. in Ontario.

Mr. Fred Collings. Montague, is: relieving Mr. Smith in the G. E. Department. C. N. R. Charlotte-- town. a

Mr. Earl Coiling.-1. Moiitaguc,

3. guest of Mr. and Mrs. William Nicholson. 1

Mr. I Freda MucDonald.. Sydney. are spending a few days in Montague. guests at the home of Mr. Col-i lings' parents, Mr. and Mrs. Den-p nis Collings. i

Di. and Mrs. Ken Bcei. Ken-i sington. and family spent a few days in Montague at the home of his parents. Mr. and Mrs. J. K., Beer. Dr. Beer has completed hisl first year postgraciuatc in siirglcali work.

The sympathy of his yniiiigi friends is extended in Kenny Pow- er who suffered a severe head in- jury on falling on the pavement from a moving bicycle. He was taken to the King's County lips- pilal for a few days. but is now at home recovering satisfactorily. i

on an extended trip of four weeksl to the western provinces, has re-. turned to her home in Montague. Mrs. Lane stopped at several points in her travel to visit her sons and relatives. At Halifax she visited Mr. and Mrs. Hollis Lane and daughter Linda Lee, and at Montreal her son Harry and Mr. and Mrs. Mocllor for a fciv days. In Winnipeg she visited with Mr. and Mrs. Stanley Seller and Mr. and Mrs. Alexander Stewart. while at Edmonton she spent a feiv days with her sister, Mrs. li.P. Enman and Mr. Enmaii. and vir.itcd other" friends. Mr. and Mrs. Louis Alex- ander. Mr. and Mrs. William Doug- las. and Mrs. John Douglas, form- erly from P. E. I. At Cadomin she spent a few weeks with her son and daughter-in-law, Dr. and Mrs. Arnold Lane, and another son El- mer. employed with the Bank of Nova Scotla. The niana::.er of this branch is Mr. Alex M:icLeod, who is well known in Montague. hav- ing spent several years in the local Bank. At Kamloops she visited Mr. and Mrs. Thomas Stewart, formerly from Belle River, and at Cawston. she spent several days with her brother. W. H. Cook. whom she had not seen for 34 years. Her brother had not seen for 34 years. Her brother accom- panied Mrs. Lanc to visit her son Sterling in Vancouver. where she also visited Mr. and Mrs. I. W. Lane and Miss Edith Lane before leaving for Victoria'where they visited Mr. Campbell. Deputy Min- ister of Education. and nephew of the late Josiah Campbell. Mont- ague. and Mrs. Campbell, and also Dr. and Mrs. Ferry. Minister of Education. Mrs. Lane had the ex- perience of travelling over the new l-lope-Princeton Highway re- cently completed through the Rockies. On her return to Edmon- ton she visited Dr. and Mrs. Scott Hamilton, and Mrs. Hazel Walker and several other friends. Mrs. Lane arrived at Winnipeg during the height of the flood. describing the scene as tra:..'ic and witnessing houses almost covered with water. and cars and trucks completely covered. After spending a few days at Montreal and at Halifax, Mrs. Lane arrived home on Friday.

GIIIIRT ORIIERE

icontlnuermom Page in Main will

"The main will lcavesl to Carrie .T. Jardine a life interest in prac- tically the whole of the teslator's estate. with the residue in trust for the advanced education young people. The revealed as- sets of the testator's estate amount to about 526.000. The codicil be- queath: 512.000 to tcstalor's broth- "er A. J. Jardine in Victory Bonds. and a mortgage of 33,!!!) to his sister Bessie Jay. without making any declaration as to how those new bequests are to tie in with

Maclioiialil Bros. Theatre

MT. STEWART

Friduy 8:80 - Saturday 11:30 -"rar noo'rs"

Drama! Danger! Adventure!

And 3 Love that waa born In the

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II. J. lAABilll

OPTOMETIIST Fitting and supplying Gianna Etc.

MONTAGUE, P. E. 1. Office loan: 10 to 12 A. M. 2 to I P. II. by appointment Ollloe Connected with

Drug store.

spent a few days in Saint John. N.i

Mrs. W. H. Lane, who has been '1

of-

the life income bequeathed by the will Carrie J. Jardine.

”'r appellants oppose the pro- bate on the principal ground that the teatator was mentally and mo- rally incompetent to execute a testamentary disposition of his property. They strongly rely an inference: to be drawn from the allegedly irrational character of the ruiduary bequest in the will, and of the dispositions made by the codlcil. because the latter dis. positions. unless they are to be in- terpreted as subject to Carrie'slife Hllereal. would substantially un- dermine that life interest and the moral obligations of the tcstator to that granddaughter. The bequest to Artemas J. Jardine is also ar- gued to be irrational from the fact

Cllilfi"-5 CUUIHI-'5 3”” 31551 that some friction allegedly exist- I ed

between him and the testator. "Four witnesses were called for the will. and twelve witnesses against it.

"The law regarding the onus as in testamentary capacity is set forth by Viscount Dunedin in Robins v. National Trust Co.il92'i'i

A.C.. p. 518,- '”Th0sc who propound a will mustl show....tliat the tcstator

was a person of testamentary cap- acity. in ordinary cases if there is no suggestion to the contrary any man who is shown to have executed a will in ordinary form will be presumed to have testa- mentary capacity. but the moment the capacity is called in question then at once the onus lies on those pi-opoundlng the will to affirm positively the iestamenary capac-

"Cf. per Hudson. J., in Leger v. Poirier (194-4) S.C.R. p. 164.

”The following three considerat- ions iead me to the conclusion that the evidence, as presented in this case. was not in a satisfactory form to enable the trial Judge to assess the factual element.s,at their real value, or to enable an Appel- late Court to decide whether or not the pronouncement of the Court below was a proper one.

WI) The learned trial Judge. in arriving at his conclusion that the deceased had testamentary capac- ity. attaches some weight. to the evidence of Dr. Preston Macin- tyre, who was the medical attend- ant on the testalor during his last illness and hospitaliution. His Honour says as follows: twhen there is added to the testimony considered the evidence of his at- tending physician that her consid- cred the leslator of sound dispos- ing memory at the time the will was made...l consider there is such a preponderance of evidence as to testamentary capacity that I would be justified in pronouncing for the will at this stage.' i.e.. be- fore certain matters of defence have been studied.

Dr. Maclntyre'a Evidence

"A perusal of the evidence of Dr. Miiclniyre shows that his only material statements on this point consisted of two words: Yes' and Yes'. The first 'Yes' was in an- swer to the question. or rather statement: "You thought at the time he was capable of making ai will.' The second 'Yes' was in answer lathe question: iDid you coiisider him of sound disposing nilnd and memory at that time'!' Even if these answers had been in response to proper questions. I am doubtful if any weight should be attached to them in the absence of. an intimation u to whether the W”"955 knew. or did not know what constituted testamentary ca- Paclly. or a sound disposing mind 3!” mCm0l'.Y; Both those expres- sions are mixed concepts of fact, inference. 'and law. in putting such questions to a medical wil- nesl. counsel was asking him to usurp the functions both of judge and Jury. The situation is certain- JY "Di improved by the fact that the words used were almost on- iziicly those of the examining coun-

"if the evidence of Dr. Maclnl l.Y1'9. as the only medical ivitnegs, was necessary to turn the scale in iavour of the lcstatoi"s capacity. as inferred from the lea;-ma mu Judge's comment. Dr. Maclntyre should have been called as a wit- ness for the will and not against it. The executors counsel would then have been confined to qugs. tions which would be strictly pro. per. in direct examination. and op- posing counsel would have had full Opportunity to cross-examine .he witness as to the elements which went to make up his opin- ion of testamentary capacity. The medical evidence would than luv; been in such a form that both the trial Judge. and the Court of Ap- Deal. could properly assess its value. As it was. the appellanta' counsel found it ncccssa ,y to call Dr. Maelntyre for a limited pup- pose. and therefore unavoidably left him open to cross-examinah ion by the Executor-'s counsel. while being himself deprived of 1110 rilht to cross-examine one who normally should have been called as a material witness for the will.

"it may be that, in order to rely on this ground alone. appellants" couoael should have invited a de- cislon at the close of the uncut. on evidence. There is no sugges- tion on the record as to whether this was or was not done. In any case, this factor is an importaiv. element for consideration in con- junction with other objectionable features of the presentation below.

”(2) The learned trial Judge finds as follows: The fact that notwithstanding the strained rela- tions between him and the teatator the former (his brother Artemas) receives a very substantial benefit in the codlcil does invite inquiry!

"I assume that His Honour did

not go so far as finding circlin-

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stances invoking a suspicion of un- due influence. but that be rather found evidence from which it might be inferred that the sudden injection of such a larl0 b9n0"i to the tcstator'a brother. substant- ially undermining. aa His Honour found it did. the life interest pre- viously bequeathed to Carrie, in- dicated an absence of the normal and rational mentality necessary to constitute testamentary capac- ity. Unfortunately. however. the 'lnvited lnquiry'. which could be adequately onducled only by the examination of the principal ben- enciary of the codlcli. was not forthcoming, and His Honour was left to unravel the tangle by re- ierencea to stray bits of iaiidom evidence which throw no light on the apparently new relationship

between the teetator and his bro- lher Artemu.

cue For Executor

"t.'i) The can for the Executor was conducted mainly by his un- lor counsel. who was also the prin- cipal twltneaa examined on behalf of the will.

"This circumstance enabled him to cr -examine opposing wit- nesses. to make comments on the points where their evidence dif- fered from his. and occasionally to make additional statements of fact. no doubt inadvertently. to supple- ment his explanation of discrep- ancies between their testimony and his own. Such a situation unques- tionably aggravate: the unsatisfac- tory staie of the evidence as I whole. (See A. S. 1911, p. 11; An.

Pr. 1038. p. 2689; 1948. p. 2171).

"l'rorn the cumulative effect of the reasons which I have outlined. I am of the opinion that there should be a new trial.

"Per curiam: The Court adjudg- cl that the pi unoement of the learned Judge of Probate 'for the will and codicil u the last will of a competent testator' be set aside. and that a new trisl be ordered. The coals of both parties on this appeal will be paid out of the estate. but no senior counsel fee will be allowed to the Respondent in respect of the argument in Court. The costs of the former trial below and of the new trial, will be in the discretion of the Judge of Probate at the termin- ation of the new trial."

counsel in the cm were: for the appellants, K. M. Martin. !.C.;

for the rolpondenll. M055” ””1'; aid Macklnnon. K.C.. Ind Mal” Macltlnnoii.