Majority
JAMES DEVINE McLELLAN AND
ING-ERSOLL McLELLAN .........
IN THE MATTER OF THE
ESTATE
OF JOHN A. P. McLELLAN, DECEASED.
ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. SEDGEWICK J.-We are of opinion that the judgment of the learned Judge of Probate, confirmed upon appeal by the unanimous judgment of the Supreme SedgewickJ. Court of Nova Scotia, ought not to be disturbed. In my judgment the evidence is conclusive upon the question of testamentary capacity.
Judgment of the Court
It is true that the disease from which the testator was suffering had the effect of inducing drowsiness or stupor, but it is to my mind proved to a demonstration by the evidence of not only the two sons, but of the magistrate who drew the will, and the doctor himself, that the testator thoroughly understood and appreciated not only the instructions he was giving to the draftsman as to the form which his will should take, but the instrument itself when it was subsequently read over to him. Neither is there anything, in my view, in support of .
the contention that the testator was unduly influenced by the two sons in making the will he did. The objection seems to be that the two sons obtained the " lion's " share of the estate. The widow, who receives her dower only in the real estate, does not complain. I am not aware that there is any principle of law which compels a testator to divide his estate in equal proportions among his children or his children's children.
Upon the last ground I have only to observe that, in my view, the evidence shows conclusively that the will was executed by the testator in the presence two witnesses, and that these witnesses signed at his request and in his presence, and in the presence of each other, pursuant to the provisions of "The Wills Act."
The appeal should be dismissed with costs.
Appeal dismissed with costs.