PRiiBliIE cmiii III u a ii IE NI lli tniiitsitn IIIII

(Continued from Page 7i

“Ming the case before granting Pro- mh ,B3n-y v. Butlivi, 2 Moore P.C. w», Again the headnote in Brown v. miter 115901 63 L.T. 465 tried before 51, James Harmon, President oi’ the probate Division reads: “The Court b 1r, gpDIOECh with suspicion thc wrisideratlon of a \vil_l procured “d pmpourrded by a. person taking i large. benefit thereunder although 1hr will may have been prepared by | solicitor, and although fraud is not pleaded by the person opposing the will; and \vhere i-here was no “summary incapacity on the part pf the testator or the witnesses. more s beneficiary who liad procur- Id and gubseqilfiltly propounded a pill foiled, under those circum- mncrr, to satisfy the Court, by affir- mgflvg and conclusive evidence that me tesiator did in fact know and njpfoYfi of the contents of the will which he had actually executed, the court applying and acting upon tho principles laid down by the House of 11mg 1n L-‘ulton v. Andrew (1875). L p; 7 H. f... 448) refused probate of iuch will with costs." In this“ case Q,- James Hannen says: Lord “m.” rrr the case of Fulton v. An- grew adopted the language of Parke u m Barry v, Butlln as correctly mting iorih the law as follows: The rules of law according to which cas- m (A this nature are to be decided do M; mrriit of any dispute so far M they are necessary i0 131B ‘kwrmm’ .1101, ‘or the present appeal; and they have been cquiesce‘ in 0n b01111 11d; These rules are two: the first that die onus probandi lies in every “g9 upon the Barty prvnoundlns I will; and he must satisfy the con- science of the Court that the instru- mgnt, so propouiided is the last will of e. free and capable testator. The second is that if a party write! or prepares a will under which he takes a benefit that is a circumstance that ought generally to excite the suspic- ion of the Court and calls upon it tn be vigilant and jealous in examlriinfl the evidenre in support of the inctru- ment in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does ex- press the true will of the deceased.‘ These principles to the extent that {have stated arc well established. 'i'he former is undisputed. The lat- ter is laid down by Sir John Nlcholl in substance In Paske v. Ollatt (2 Phill. 323) Ingram v. Wyatt (1 I-Iagg. Ii‘. R. 3681 and Billinghurst v. Vick- ers il Phill. 187) and is stated by that very learned and experienced Judge to have been handed down to him by his |ll ‘ecessors, and this tri- burial have sanctioned and acted up- cc it in a. recent case; that of Bak- er v. Batt (ante 317)." _Sir James adds. "1 have usually taken the op- pcrtunity of referring to that as lay- hg down what is the guiding princi- ple to be acted upon in cases of this kind." - The principle Is approved and ex- tended in Tyrrei v. Painton (1894) P. D. I51. I quote from Lindlcy I... J. It b. 157; "The rule in Barry v. But- Ilil. Fulton v. Andrew and Brown v. Fisher ls not in my opinion confined I‘ the single case in which a will is Ittfld b1 at an the instructions of the person taking large benefits under It. but extends to all cases ‘in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist and what- ever their nature may be, it is for those who propound the will to re- move such suspicion, and to prove liflrmatively that the testator knew Ind approved of the contents of the document. and it is only where this I4 done that the onus is thrown "Fan time who oppose the will to Pffive fraud or undue influence or Whatever else they rely on to dis- Iillce the case made for proving the will." This reference to the shifting °I ih: onus where there Is a con- tention of undue influence is in keep- "! With the rule laid down in Boyce '- Ilcssborotigh, 6 H.L.C. 2, namely "Ill where once it has been proved "Ill a will lies been executed with due solemnitics by a. person of com- W411i. understanding and apparent- IY l free agent the burden of prov- ml that it was executed under un- due influence is on the party who el- l! It. Undue influence cannot be mmmed. This has been followed b? the later authorities and is un- "Rbiqdlv the law.

w" ‘Imnaly urged upon me by $111151 ioi- the executors that Tyr- ii -.‘.;.§I-“.‘.i".°.?.. 12.1.3323 Zifidilli? 39b?’ CI’!!! v. Lsmoureux 1920 A.O. “$93 mllysis of the latter judg- . f" not seem to support this “Tileniicn. 1n that case I em of the

i=1 the Prlvv Council intended pri- marily to re-afllrm the doctrine or Boyce v. Itossborough, and to emphg. size that doctrine as a limit to thc principle applied in Barry v. Butlin 111d Sllilbortinz cases. Confirmation of this view may be had by g read. 1H8 of Viscount Haldane! judgment after noting the form in which the arguments were presented to the Board. The appellant did not attack the principle of the Barry v. Butlin cases, but took the ground that such principle did not apply in the cir- cumstances of Craig v. Lamoureux. The respondent on the other hand appears to have urged that on the authority of Barry v. Butlin and Brown v. Fisher the appellant being the sole beneficiary under the will the onus was upon him to establish that it was not procured by undue influence. Indeed Viscount Haldane delivering the judgment of the Board says (at p. 351), "The claim was made against the appellant as de- fendant and was bred nn the con- tention that as the appellant. who was the husband of the lestetrix, was the sole beneficiary under the will and had been instrumental in pre- paring it, the onus lay on him to show that he had not procured its executi by undue influence and misrepresentation, and that. this on- ushe had failed to discharge."

Further Craig v. Lamcureux dis- apprcvcs of the principle that those who take for their own benefit after having been instrumental in fram- ing or obtaining the will fire pluced in c. different position in law from ordinaryvlegatees in that the former have thrown on them the burden of proving the rig.” tecusness of the trun- sactlon. Such disapproval by their Lordships, it seems to me is merely another way of supporting the doc- trine quoted from Boyce v. Ross- bcirough as, clearly, if a legetee were required‘ to prove the righteousness of the transaction he would, in or- der to do so. have to prove that there was no undue influence.

The case of In re Eliza Simpson 53 N-SR. 285, a Judgment of the Su- preme Court of Nova Sootia, which was cited as showing that Craig v. Lamoureux overruled the Fulton v. Andrew oases does no more than lay down that the rule that if a man writes or procures to be written the will of another In his own favour he has the burden of proving the right- eousness oi’ the transaction, which Mr. Justice Ritchie delivering the judgment of the full bench declared had theretofore prevailed, is not, since the decision in Craig v. Lam- oureux, the law. Williams on Exe- cutors 11th Ed. would appear to re- gard the doctrine established in Barry v. Butlin as remaining undis- turbed by Craig v. Lamoureux. That work quotes fully (p. B4) from the judgment of Parke B. in the former case, cites as authority the judgment of Lord Cairns in Fulton v. Andrew, and the judgment in Tyrrell v. Pain- ton, without reference to Craig v. Lamoureux although the last named case is noticed earlier in the work. I do not conside that I arn called upon to define the limits within which Craig v. Lamoureux confines the doctrine of Fulton v. Andrew but I think the law as appertaining to the present case is correctly laid down in Odynak v. Feschuk 192B, 1 D. L. R- 423 namely that in an ac- tion to set aside Probate of a will- in common for-m the person pro- pounding the will must show testa- mentary capacity, arid the fact of ex- ecution, but it is only in cases where a person takes a large benefit under the will and there are other grounds of suspicion that the onus is cast on him of showing that the testator ful- ly understood the will. Retumlng to the will in question the executors produce the attesting witnesses Dr. Champion and the nurse Ruth Mc- Donald to prove affirmatively the testatofs capacity and execution of the will on February 27th. They sup- port their contcntion of testators knowledge and approval by what are termed declarations of adhesion made to two independent witnesses, namely the nurse and the neighbour John McPherson, u well as to Mrs. wil- liam Nelson. The nurse's evidence is: Q. "Did he ever say anything to you as tn how he intended to dispose of his estate? A. "He dlId he intended to leave most of it to Mr. William Nelson McWilIiarris.“ Q. "When did he tell you that?" A. “After he made his will and on more than one occas- ion-thct Mr. Mcwilliems was to get the most of his property." Q. "How often did he tell you that?" A. "I sup- pose he told me three or four times on differnt occasions." McPherson visited the testator along the first week of March and says teststor was talking that he had made c. new will around the 1st of March and given his property to Willie Nelson. Mrs- McWiIlierris‘ evidence is to the some effect. I ‘sec no reason why I should not accept this evidence but I am concerned as to the value I am to place on it. Here again the absence from the witness-box of William Nel- son leaves the Court at a disadvant- age. I clannot overlook the fact that

H1956 statements W61‘! made WIIIIQ

°°‘“‘°°ih-tiho,vgg1gogrn_;n_i1getee mm wee we dimer-s

from age and infirmity in the house‘ of the men who does not deny the llllketions that testetor feared him. If these stator-non‘; are to receive full weight as declarations of adhes- ' ion then testatcrs tctal ‘dsregnrd of‘ his memorandum to Mrs. Lidstonc a month before can only be explained‘ Ly shortness of memory or duplicity. I That three weeks after he left he.- house and two or three days before the will was made testator desired his niece to visit him does not suggest his forgetting her and can I assume such a degree of duplicity that the testator would leave a. written mem- orandum in the terms as shown with his favourite niece, to whom be ex- pected to return, the while his sole intention was to leave practically his whole estate to his nephew? Not- withstanding this if a. capable test- ator knew and, approved the contents of a will executed with due formalit- ies the law does not require for its validity a reconciliaition of its terms with previously expressed intentions no odds how contrary. It remains men for me to examine the circum- stances connected with the making of the will which in the last analysis must be the basis of my decision in this case.

On Saturday February 25th the nurse wrote Mrs. Lidstone the fol- lowing letter tExhiblt. ll):

“Dear Madam.

I am ivritirig this note for Mr. Mc- Williarns and sending it down with Verna. Mr. McWilliams would like to 59¢ Y0" find your son Guy. So if you could come up any time before Mr. Lidstone goes back. Mr. Mcwiiliams Ls keeping about the same he is more feeble and is losing some flesh so whenever you can Mr. McWilliams would like to sec you.

Sincerely RUTH McDONALD," Nurse.

'I‘lie wording of the letter and the nurse's evidence together with the fact of the obviously strained rela- tions between the Mrs. Lidstone and William Nelson's household convince me that this letter was written solely at the instigation cf Alfred McWil- liams. _

Admittedly the sending of this let- ter was known to Mrs. Wm. Nelson and I have no doubt to her husband. On Monday the 27th Wm. Nelson telephoned Dr. Champion to come. Tire doctor (driving ten miles in win- tar) arrived about 9 or 1f‘ a. m. Why was he sent for? Dr. Champion mak- ing one of his regular professional visits which he said were only re- quired once or twice a week had been there two or three days bofovc and there was nothing alarming or even unusual in testawrs condition that morning. As Wm. Nelson told the doctor on arrival that very likely the old man would want another will make, I cannot see but that it was for that very purpose that Wm. Nel- son brought him. The introduction of the subject of o. will, the reason for the discovery of the loss of the Bell will, and the emanation of a tie- sire for a new will that morning are lost in Wm. Nelson's silence, though the Iatter's wife shows that Wm. Nel- son and testator were discussing the matter. At any rate Dr, Champion drew the will and says: "He dictat- ed the will to me by memory want- ing to make it the saine as the will that had previously been written, that Morley Bell of Summerside had written for him. I filled in the be- quests as he dictated them to me which he said were in this former will with one exception in this will wliich- he said was in tho former one. The amount of $250.00 to Wal- lace MeNeill was in the former will." The wills are in substance identical as to beneficiaries with the exception that besides the dropping of the McNeIII legacy one of $250.00 to a Caroline Murphy is dropped from thc later will. A question t0 one of the witnems suggests that testator paid the Murphy bequest in hm lifetime. In any case the similarity in thc wills is a. strong indication of the cleamess of the testators memory. H9 had not seen the Bell will since the prevmus fall. At once a question arises here, namely. if. as it is con- tended Alfred Mcwilliams desired in effect to re-write the Bell will be- cause it could not be found why was Dr. Champion substituted for Bell as an executor? The change is not consistent with the relations between thus parties and the old mm. Bell and Tenton did his business in Prince County. Mr. Bell was well regarded by the old man and until the making of the will in question there is noth- ing in the evidence to suggest a change or reason for a change in the confidence which teetator placed in him. On the other hand it is not de- nied that the tutator disliked Dr. Champion and had no faith In him. at least as a doctor. This may have been unjust to the Doctor but I em concerned only with thc tcstatorb attitude, riot the basis of it. There is no evidence that Dr. Champion's coming was at any time et the re- quest of the testator or even to his knowledge. He first was brought by William Nelson and on the murnlnl

THE CHAQDOITETQWNMCUARDIAN

prcceedcd up stairs and interviewedl there are inrhcaticns of partisanship‘ the tartator there being present in in it. At the bedside interview on‘ the room besides the testator, Mn. March 1st she volunteered the infer-I Lldstone, Dave Coughlin, William rnetion that Dr. Champion said Wil- ' Nelson and the nurse. Mrs. Lidstone'liam Nelson should have the kcy._ sat down, explained to the testatoribn the occasion of Guy Lidstonc‘; ’visit she seemed desirous of having; Iihe teetetor believe the story of thc transfer the bonds to William Nelson,

The latter also paid him for some cf his visits. There is other evidence suggestive of quite friendly relations between the doctor and William Nel- =on as that when a signed order of the testator was given to Wm. Nel- son for delivery to the latter of con- trol of the farmer's bonds he arrang- ed immediately for the doctor to ac- company or follow him to Charlob. tctovvn to take over the control al-' ihcugli there was nothing which ap- peared to demand the doctor's pres- ence on such an occasion.

‘Ihere is also the fact of the bring- ing of Dr. Champion to draw the will instead of Mr. Matthews the lawyer at Oleary. If the testator lacked faith in Dr. Champion as a physic- ian it is hardly to he supposed he would prefer him to an attorney for work which an attorney is best quali- fied to do. In the cLrcumstances and for lack of any explanation from Wm. Nelson I must presume that Dr. Champion was Wm. Nelson's se- lection and not the testators as draughtsman of the will. ‘These facts and Dr. Champion's materiel inter- est as an executor in the outcome of this case (for an executors com- mission in an estateof this size can- not be ignored) prevent rne from giv- IIIB the weight to Dr. Champion's evidence that the authorities accord to that of an independent physician.

The facts sunounding the actual making of the will are not in dispute. According to Dr. Champion he vms alone/In the room with the testator when the latter dictated and the former drew the will. The nurse and William Nelson were standing across the hall outside. The nurse twho so far as her knowledge can extend cor- rcborates the doctor) was then cal- led in and she and the doctor witnes- sed the will which the testator exe- cuted by liis mark. win. Nelson comes in, is told by the old man what he has done, is given the will by thc doctor and takes it out of tho room with him. I hold that the will was executed with the necessary formal- ities and from the evidence of both sides as to his condition on that day I am satisfied that he had testamen- tary ' capacity. .

Following this according to the evidence of Doctor Champion. the testator said that William Nelson Mcwilliams might as well have thc bonds made over- to him.

An order was drawn up directing that the bonds, or at least the key of the box containing the bonds, be de- livereci up to William Nelson Mc- Williarns. The order seems to have been drawn up almost’ immediately following the making of the will and was executed in the same circum- stances, and attested by the same witnesses who had witnessed the will. In my opinion it is a natural infer- ence that, if the testator knew and approved of the contents of the will. then he knew and approved of this order respecting the bonds. Some- time during the course of this double transaction Dr. Champion and Wil- liam Nelson made arrangements to go to Town the next day and take delivery of the Bonds. Having regard to William Nelson's former efforts to obtain the bonds, I cannot but get an unfavorable impremion of this uncalled for haste in his rushing to Charlottetown to get control of them. In the afternoon of that day in re- sponse to the letter written by the nurse, Mrs. Lidstone and her son Guy visited the testator. Mrs. Lid- stcne's evidence is that when she went in, the testat/ar broke down and cried. No mention was made of what had gone on in the morning. Mrs. Lidstoiie complains that she did not see the testator alone during this visit. She does not appear to have requested a private interview, but it is not denied that when she left thc tea tablc down stairs and went up to see the old man before departing, William Nelson's eldest daughter im- mcdizitely followed her up and came in to ask how the old man was al- though she had been with the old man previously without making the same inquiry. At that visit also the testator complained that he was los- ing the use oi’ his limbs as they would not let him walk around, and Mrs. Lldstone and the nurse helped him in taking a few steps. The tes- tater also expressed a wish that he was down in Mrs. Lidstones big kit- chen. This evidence at least is indic- ative of the feet that the iestatofs affection for his niece had not ab, tered. And why- did the testator break . down end cry? No explanation is of- fered by the executors. The execut- ors did not obtain the bonds when they went to Charlottetown as Mr. Tinney who had control seemingly was not satisfied with the order and wrote mmediately to Hrs. Lidstone enclosing her an order directed to him to the same effect as theother one. and asking that she g0 With I! witness and sec if the teststnr real- ly intended to give such an order. This brings us to > the following Thursday the first of March. ltfrs] Lidstone ' and her brother Davc’ Coughlin. in accordance with the re- quest in Tinneys letter, went to Wil- liam Nelson's house and appraised William Nelson of the purpose of

the reason they had come and told him if he wanted Mr. Tinney to

that she had an order for him to sign to that saidhe was not going to sign it that he wanted the bonds left where they were, that Tinney could look after them, he was an honourable man arid there could be no crooked work done as Tinney could not get in ivitliout the banker's key. Mrs. Lidstone says, after some further evidence about the right to the key or keys, “Uncle Alfred said the kcys were all right where they were; he wasn't going to give them up-Uncle Alfred said that after he got better he was going to Town and he was going in have a new will made and put in new be- quests." This is only three days aft- er the making of the will in dispute.