Beaver Dam (District) v. Stone Estate

that the trial judge has improperly taken the case from the jury) is only permissible upon obtaining special leave under section 39. We think we should be misinterpreting the intention of the Legislature if we ascribed such effect to the E' amendments of 1920. Besides, the adoption of such a con- TheCourt. struction would involve a reversal of the practice which has obtained since those amendments came into force.

IN THE MATTER THE ESTATE FRANKLIN DAVID

DAVIs, DECEASED

*Feb. 24. MARY JANE ROGERS DEFENDANT)..

. APPELLANT;

AND

HELEN ELIZABETH DAVIS (PLAIN- I

RESPONDENTS.

TIFF) AND OTHERS (DEFENDANTS) ....

f

ON APPEAL FROM THE APPEAL ONTARIO

Appeal-Will-Testamentary capacity-Concurrent findings of two courts below on questions of fact.

The appeal was from the judgment of the Court of Appeal for Ontario, affirming judgment of Rose, CJ.H.C., declaring that certain purported testamentary dispositions constituted deceased's will.

Appellant contended that no part of the last of the documents in question should be held to form part of the will, as it was not shewn that deceased, at the time of the making and execution of it, was of sufficient mental capacity or of a disposing mind, or understood or appreciated the document, or that it was the expression of his desires.

Held, that, as there was nothing to indicate that the trial judge misdirected himself, or that either he or the Court of Appeal failed to appreciate the facts, and as, in the courts below, there was nothing that could be described as a miscarriage of justice or a violation of any principles of law or procedure, this court should refuse to examine the evidence in order to interfere with the concurrent findings of the two courts below on what was a pure question of fact. (Robins v.

National Trust Co., [19271 A.C. 515, at 517-518).

The principle laid down in Perera v. Perera, [1901] A.C. 354, at 361, as to extent of capacity required on executing a will prepared in accordance with instructions previously given, held applicable.

*PRESENT:-Duff, Rinfret, Lamont, Smith and Cannon JJ.