Judgment of the Court
J.-The real question for determination in this appeal is whether the signature of the testator, Alicia Cullen, to the will in dispute was acknowledged pursuant to the statute by her in the presence of the two witnesses who signed the will as such.
On proceedings taken in the Surrogate Court Nova Scotia to prove the will in solemn form, the surrogate judge pronounced against the will on the .
ground, mainly, that it had not been either signed or acknowledged by the testator in the presence of the witnesses.
On appeal, the Supreme Court of Nova Scotia upheld this finding.
The question for our determination is whether the evidence is so clear and strong on the point of acknowledgement as to justify us in reversing the judgments of the courts below. I am inclined to the opinion that it is not and that the evidence of what took place at the time of the execution of the will did not involve an acknowledgment by the testatrix that the signature to the will was hers.
Mr. Ross argued that the Court of Appeal in Nova Scotia had drawn a wrong inference from the proved facts, but I take it to be clear from the decided cases on the statute, that, if the testator. does not sign the will in the presence of the witnesses and its proof depends upon his or her acknowledgment of a signature previously written, not in their presence, there must be some clear evidence to show the testator's acknowledgment and approbation.
From the decision of the Court of Appeal in the case of Blake v. Blake (1), it would appear that no acknowledgment is sufficient unless, at the time, the witnesses either saw or might have seen the testator's signature. In that case the signature was hidden by what Brett L. J. called, but, while desirous of upholding the will so far as it possibly could, and, consequently, found against the will.
The subsequent case of Daintree v. Butcher (1) was pressed upon us as conflicting with Blake v. Blake The distinction between the two cases is vital. In both cases, the testator's signature was written to the will before the witnesses came into the room to witness. In the former the testator's signature was not and could not be seen by the witnesses.
In the latter the signature of the testator was so placed that the witnesses could have seen it when they signed their names as witnesses.
The Court of Appeal, in this latter case, held that the testator had asked one of the two attesting witnesses to sign it and that it must be taken from the evidence that, after the other attesting witness had come into the room, the first one
This " in the presence of the testatrix " manifestly means from the report, in the " presence and hearing " of the testatrix, and, in fact, is so stated by Butt J. who first heard the case, at page 67 of the same report. In delivering the judgment of the court, Cotton L. J. says, at page 103:
In the case now before us, I think it is proved satisfactorily that the testatrix, Alicia Cullen, had signed the will before the witnesses came into the room or office where she was with her solicitor, and that, at the time when they entered the room she had returned to her seat some short distance away from the desk which the will lay. It is true that neither of the witnesses could, at the hearing, positively affirm that Mrs. Cullen's signature was there at all, but I think that McNeil's evidence satisfactorily settles that point. J. Then, upon what facts or evidence can we hold that there was an acknowledgment of her signature? As Townshend J. in delivering the judgment of the court, says:
It is true that McNeil states that almost immediately after the witnesses came in he, standing at the desk and facing Mrs. Cullen, asked her whether that was her will and signature and if she wished these witnesses to sign and that she replied " Yes." But, apart from the fact that they positively deny having heard anything of this, it is not sworn by McNeil himself that they did or could or must have heard it. If they never heard his question or her reply it is difficult, in the absence of other affirmative evidence, to see where there was an acknowledgment.
At any rate, on the facts, both courts have found against the will, and while, if the findings had been under all the surrounding circumstances the other way, I might have found it difficult, making proper allowances for lapse of time and memory, to reverse them, I cannot see, after most careful consideration how I can, under the evidence and the findings as they are, do otherwise than express my concurrence in the judgment below and dismiss the appeal. Appeal dismissed with costs.