his gifts to the individuals comprising Group 1, and whom In he referred to as "legatees," and the word " bequests " to his gifts to charities.
The appeal should therefore be allowed with costs but the costs payable out of the estate will be limited to one set each for appellants and respondents. The Official Guardian's costs will also be payable out of the estate.
Appeal allowed. Solicitors for the appellants: Shaw & Shaw.
Solicitors for the respondents, the Trustees of the Home of J.
the Friendless in the City of Chatham: Kerr, McNevin & Kerr.
Solicitors for the respondents, the Trustees of the Children's Shelter of the City of Chatham, and the Salvation Army of the City of Chatham: Smith & Smith.
Solicitors for the respondent, the Muskoka Hospital for Solicitor for the respondents, the Home Mission Fund of the United Church of Canada, the Superintendent of the Sunday School of the United Church at Charing Cross, and the Superintendent of the Sunday School of the Zion United Church, Creek Road, County of Kent: A. T. Whitehead.
Solicitor for the respondent, Harvey Mitton: McGregor Young.
Solicitors for the executors of the estate of said deceased: Grosch & Bell.
GROFF v. HERMAN
APPEAL by the plaintiff (by leave granted by the Appellate Division, Alta.) from the judgment of the Appellate Division of the Supreme Court of Alberta (1) allowing (Clarke and McGillivray, JJ.A., dissenting) the defendant's appeal from the judgment of Boyle J. in favour of the plaintiff.
The plaintiff and defendant were neighbouring farmers, living near Crowfoot, Alta., and in 1928 they had large quantities of wheat, which they assisted each other in hauling, most of which was shipped through different elevators, but two carloads were shipped directly into the cars over the railway platform. The whole question for determination was whether, on conflicting evidence, the wheat in one of these cars belonged to the plaintiff or to the defendant.
On the appeal to this Court, after hearing argument of counsel, the Court reserved judgment, and on a subsequent day delivered judgment allowing the appeal with costs in this Court and in the Appellate Division, and restoring Anglin C.J.C. and by Smith J. Smith J., with whom Rinfret, Lamont and Cannon JJ. concurred, after discussing the evidence at some length and after discussing the judgments below, expressed the view that this was an ordinary case of a trial judge hearing and seeing the witnesses and, from their conduct in the box and the circumstances, arriving at a conclusion as to which side was right as to the facts. After reading all the evidence very carefully, the learned judge was not prepared to say that he would have differed with the trial judge on his finding of fact on the whole evidence, and therefore his judgment should prevail. Anglin C.J.C. stated that he concurred in the result of the judgment on the simple ground that the case involved nothing but a question of fact, upon which the trial judge had made a specific finding based upon evidence which, apparently, fully warranted it, and there was nothing in the case to justify the action of the Appellate Division in setting that finding aside, based, as it was, chiefly upon the credibility of witnesses.
Appeal allowed with costs. 0. M. Biggar K.C. and M. B. Gordon for the appellant. H. A. Aylen for the respondent.