Agostino v. The King

and MARGUERITE VALENTINE

APPELLANTS; *Oct. 10

MACLEOD ......................

AND

WALTER DOUGLAS, Executor of the last Will and Codicil of William F.

RESPONDENT. Jardine, deceased .................

ON APPEAL FROM THE SUPREME COURT OF PRINCE EDWARD ISLAND.

the judgment of Palmer J. of the Court of Probate whereby he admitted to probate in solemn form the will and codicil of the late William Faulkner Jardine, and ordered a new trial before the Probate Court. An appeal was taken from that part of the judgment directing a new trial. As to that part which set aside the judgment of the Probate Court, the appellant contended that the Appeal Court having found the documents submitted not proved, and no other document of a testamentary nature having been offered for probate, this was a finding of intestacy and the Appeal Court had no power to direct a new trial and further, since the evidence clearly established testamentary incapacity, a direction for a new trial was unnecessary. Held: By the majority of the Court, Rand J. expressing no opinion and Cartwright J. accepting the reasons of Kerwin J. (concurred in by Taschereau J.) and of Kellock J., the Supreme Court in banco had power to direct a new trial.

Held: also, Rand and Cartwright JJ. dissenting, that in the circumstances of the case, a new trial should be had.

Rand J. would have allowed the appeal and pronounced against both the will and codicil. Cartwright J. would have dismissed the appeal, allowed the cross-appeal and restored the judgment of the trial judge. Per Kerwin and Taschereau JJ-Section 43 of The Probate Act stating that if the appeal is allowed the Court of Appeal shall make such order as shall seem fit is sufficient for that purpose. If there be any doubt then

Per Kerwin, Taschereau and Kellock JJ.-Such authority is to be found in The Judicature Act, 1940, c. 35, s. 26(1); 0.58 r. 5 passed thereunder, and 1941, c. 16, e. 2.

Per Kerwin and Taschereau JJ.-Without deciding whether such evidence would be admissible or not, on the new trial to be had, no one appearing as counsel for any party should give evidence.

Kerwin, Taschereau, Rand, Kellock and Cartwright JJ.