the judgment of the trial judge, Surveyer J. and maintaining the respondent's action.
The material facts of the case are fully stated in the above head-note and in the judgments now reported. W. F. Ritchie K.C. for the appellant.
L. P. Criveau K.C. for the respondent.,
THE CHIEF JUSTICE.-Under the circumstances the case, the disposition of all his property to his wife was not unreasonable, but on the contrary was such a disposition as the testator without any injustice to any one might fairly have made.
I am inclined to think the learned Chief Justice of the Court of King's Bench placed a much broader construction upon Doctor Anderson's evidence than its language warranted.
I think the doctor, in giving the evidence he did, intended to limit his opinion as to the mental condition of the testator to the time that he was under the effect of the injection of morphia and not to extend it to the time when this effect had worn off. Accepting the evidence of the wife as I do, though she was the sole beneficiary, and also that of the two witnesses to the testator's signature, I cannot entertaiR a reasonable doubt of the capacity of the testator, when he signed the will, to do so or that the will embodied his real wishes and intentions.
I think this evidence shews the requirements of article 851 of the Civil Code to have been complied with. . See Faulkner v. Faulkner (1).
I would allow this appeal and restore the judgment of the trial judge upholding the will.
J.-This is an appeal from the judgment of the majority of the Court of King's Bench of Quebec reversing the judgment of the Superior Court which affirmed the validity of the will in a suit which was first launched to set aside the probate as irregularly obtained, but by amendment of the pleadings involved the validity of the will itself, on the ground that the testator was non compos mentis at the time when he is alleged by respondent to have executed the said will. The deceased signed a will of which the following is a true copy:- That was attested to by two witnesses, called in for the purpose, on an occasion when the deceased was suffering from a severe illness. To ameliorate the said suffering the doctor in attendance had been in the habit of administering narcotics twice a day, at eleven o'clock in the forenoon and eight o'clock in the evening.
It is urged that the pain and suffering thus alleviated rendered the deceased non compos mentis although the document was signed between two and three o'clock in the afternoon, and the doctor admits the acute effects of the narcotics would only induce from two to three hours sleep.
The deceased was sitting up and signed the document on a pad handed him by the appellant when in that position, which with his frail state of health amply accounts for the shaky appearance of his signature.
If the appellant's story is true, it was drafted by a pencil in the hand of an intimate friend of the deceased, the previous day, copied by her and shewn to her deceased husband the same day about 5 p.m. when he assented to it, at an hour when the influence of the narcotic injected at eleven a.m. must have almost entirely passed.
The learned trial judge accepted her entire story as true, and that of the witnesses who had attested the signature as true.
To hold such a will invalid for the technical reasons assigned by the learned judges of the Court of King's Bench, disregarding all the attendant circumstances, as evidence of an effectual compliance with the requirements of the law, would, as Mr. Justice Martin suggests, render. invalid many apparently good wills. In many of the essential features of the case, necessary to consider herein, it has a remarkable resemblance to the case of Lamoureux v. Craig (1), save that in my own view and that of others considering the facts in that case there was much to give rise to a suspicion that the will was neither what the testatrix had previously intended or might have been expected to intend, and that the signature of the testa- J. trix was thought by some of us to be illegible. In this case there was nothing but what one would expect to find, and what was consistent with the duty of the testator.
Moreover there was such a simplicity in the words used in question herein that all that which needed to be understood by him signing was so susceptible of comprehension at the slightest glance that, if any consciousness at all were left, they must have been understood by any one capable of executing the document as undoubtedly the deceased was.
In the Lamoureux Case (1) the deceased had rejected one will submitted to her for reasons she assigned and, when her vitality had been reduced below what the alleged testator here in question possessed, she had presented to her a will which needed the possession of very acute faculties to comprehend whether or not her wishes had been observed.
I quite agree with Mr. Justice Surveyer that if the will in that case, as the court above held, overruling us, was maintainable, certainly this is much more so. I need not enlarge; for the learned dissenting judges in the court below have so fully and carefully covered the ground with more extended notes in all of which I concur, as to render it needless for me to repeat same herein.
The appeal should be allowed with costs here and in appeal below and the judgment of the learned trial judge restored.
J. (dissenting).-This appeal, in my opinion, should be dismissed.
The onus rests upon those who propound a will of establishing that it was the will of a competent testator.
After fully examining the evidence I cannot resist the conclusion that the medical evidence points clearly to incompetency and I can find nothing in the other evidence relied upon to counterbalance the effect of this.
The appeal therefore, in my opinion, fails not merely because I am not satisfied that the conclusion reached by the majority of the court below is wrong but because as a result of an independent examination of the evidence I think the weight of evidence supports that conclusion.
J.-Two distinct issues are presented on this appeal-one as to the testamentary capacity of the testator, the other as to compliance with the requirements of Art. 851 C.C. in the execution of his will.
The learned trial judge determined both in favour of the appellant, the sole beneficiary. The Court of King's Bench decided both against her by a majority of three judges to two.
The evidence of the doctor who attended him is relied on to establish the testator's incapacity. But, with great respect, I think it far from conclusive. It is not clear that he refers to incapacity other than that caused by the administration of narcotics. As to that he says it would not last more than two or three hours after the injection had been given. Three and a half hours appear to have elapsed between the last previous injection and the execution of the will. The appellant who was present at the execution says her husband was then "perfectly all right; he knew what he was signing."
Robert Mellor, one of the witnesses to the will, says the testator recognized him and the other witness, James, and that he did not seem to be in a dazed condition but on the contrary "s'eemed to know what he was doing." In answer to an inquiry as to his health by Mellor he replied "not well; not well."
James did not address him but thought the testator knew who he was. The appellant tells us that her husband sat on the side of his bed, that she gave him a writing pad which he put on his lap and then signed the will without other assistance.
This statement is not contradicted. In fact it is corroborated by Mellor except that he thinks a table was used and not a writing pad. The signature itself, while somewhat shaky, is remarkably good for a man who died the next day from Bright's disease.
The trial judge evidently believed both the appellant and the witness Mellor and, so far as one can judge by reading their testimony in print, it seems to be perfectly candid and entirely credible.
The will itself is reasonable, having regard to the testator's circumstances.
It consists of only sixteen words-a simple devise to the widow of the entire estate and effects, which are said to amount to about $12,000.
The appellant tells us it was drafted in pencil the day before its execution by Mr. Tuck, an intimate friend of the testator, with his approval if not by his express instructions, that she copied this draft and shewed the copy so made to her husband the same afternoon and again the next morning and that he approved of it as expressing what he wished on both occasions.
Taking all these circumstances into account, while, had the will been lengthy or the dispositions at all complicated, I should have doubted the testator's capacity to appreciate it, I am satisfied that the evidence of the appellant and the witness Mellor sufficiently proves that he had capacity on the afternoon of its execution to make a will such as that prepounded. The only objections to the sufficiency of the execution under article 851 C.C. which call for attention are that the testator did not refer to the document prepounded as his will or acknowledge his signature to it in the presence of the witnesses and did not request them to attest the will.
Compliance with all other formalities prescribed by that article is fully established.
Mellor tells us that when he and James came to her husband's bedside Mrs. Wynne "asked if we would be witnesses and put our signatures on his will; she said it aloud to both of us."
The will was then placed before the testator 'and he signed it, as already described, in the presence of Mellor, James and Mrs. Wynne, and Mellor and James "immediately" signed as witnesses in his presence and in that of each other. The signature by the testator thus made requires no other acknowledgment as the learned Chief Justice of Quebec points out; and, with great respect, it implies in my opinion both knowledge by him of the fact that he was executing his will and a request to the witnesses to act as such.
This implicit recognition of the document as a will and request that the witnesses should attest the signature of the testator are, I think, a sufficient compliance in these particulars with article 851 C.C.
I would for these reasons allow the appeal and restore the judgment of the learned trial judge. The respondent should pay the appellant's costs in this court and in the court of King's Bench.
J.-La pr6snte action 6tait originairement institu6e dans le but de faire mettre de cotd le jugement qui avait 60 rendu par le Protonotaire de la Cour Sup6rieure qui d6clarait que le testament de John Francis Wynne avait 6t6 ddment v6rifi6. Cette action en annulation du jugement de v6rification all6guait que les formalit6s voulues n'avaient pas 6t6 remplies et que la preuve qui avait 6t0 faite 6tait mensongbre.
II appert, en effet, par la preuve qui a 6t0 faite en la pr6sente cause, que l'affidavit du nomm6 Tuck sur lequel le Protonotaire avait bas6 sa d6cision rapportait des faits absolument inexacts.
Ainsi il jurait qu'il 6tait pr6sent lors de la signature du testament par le testateur, tandis que la preuve incontestable d6montre que cette assertion est inexacte. La d6fenderesse, qui soutient la validit6 du testament, est oblig6e d'admettre dans sa d6fense que cette partie de l'affidavit Tuck 6tait erron6e et elle plaide que cette erreur provenait du fait que l'avocat qui avait pr6par6 1'affidavit n'avait pas compris parfaitement les informations qui lui avaient 6t6 donn6es. Le jugement de v6rification aurait certainement 6t6 cass6 sans la preuve additionnelle qui a 6t6 faite en la pr6sente cause.
Cette preuve est que le testament avait 6t6 prdpar6 au crayon de mine par Tuck lui-m~me sur les instructions du testateur, qu'il aurait 6t6 transcrit A 1'encre par la femme de ce dernier, que le testateur l'aurait sign ensuite en pr6sence des deux t6moins Mellor et James dont les noms apparaissent sur le testament, et que le lendemain le nomm6 Tuck y aurait lui-mime appos6 sa signature comme t6moin.
Il est incontestable que cette signature de Tuck ne donnait aucune valeur au testament, mais pouvait-elle avoir pour effet de le rendre nul si autrement il 6tait valide?
Certainement non. La cour pouvait done, dans ces circonstances, d6clarer que le testament, vu la preuve additionnelle faite, 6tait dilment v6rifi6.
J. Le demandeur a alors compris la faiblesse de sa position et il a demand6 A amender sa d6claration pour all6guer que le testateur n'6tait pas compos mentis lorsqu'il a sign6 son testament.
La Cour Sup6rieure a renvoyd I'action du demandeur et ce jugement a 6t6 renvers6 en Cour du Banc du Roi. La v6rification du testament n'a pas 6t, vu la preuve faite, le vritable sujet du litige; mais la discussion a port6 sur la capacit6 du testateur et sur les formalit6s -requises par la loi pour rendre un testament valide.
Le testateur 6tait 6videmment dans un grand 6tat de faiblesse.
De fait, il est mort le lendemain. Le t6moignage du m6decin qui le soignait n'est pas trs favorable A ceux qui r~clament que M. Wynne 6tait capable de tester.
II avait perdu espoir de le gu~rir et alors tout le traitement consistait A lui administrer soir et matin des drogues destin6es A apaiser ses douleurs. L'effet de ces drogues 6tait de le plonger dans le sommeil ou de le rendre inconscient pour une couple d'heures.
Quand il a exprim6 ses derniares volonts A son ami Tuck et 1 femme, il paraissait comprendre parfaitement ce qu'il faisait.
Les t6moins du testament jurent qu'il paraissait comprendre ce qu'il faisait quand il I'a sign6 en leur pr6sence. I n'a dit alors que deux ou trois mots qui portaient sur son 6tat de sant6; mais on ne saurait dire qu'il ne comprenait pas la port~e de la signature qu'il donnait.
II pouvait etre encore un peu sous l'influence des drogues qui lui avaient 6t6 administrdes environ deux heures auparavant; mais le maintien qu'il avait et sa r6ponse A la question qui lui avait 6t6 faite par l'un des t6moins d6notent un 6tat d'esprit qui me paraitrait incompatible avec l'incapacit6. Si on n'avait que la preuve des t6moins du testament, il serait peut-etre assez difficile de dire que le testateur savait que le document qu'on lui faisait signer 6tait 1'expression de ses derniares volont6s, car la demande que la femme du testateur a faite aux deux t6moins de signer le testament n'a peut- 6tre pas t6 entendue par le testateur; mais par le t6moignage de la femme, qui a 6t6 accept6 par le juge, quoiqu'elle fxt contredite sous certains rapports, nous avons la preuve bien compl6te et bien certaine que le testateur savait qu'il signait un testament. Les circonstances d'ailleurs rendent probable le fait que ce testament doit repr6senter la volont6 du d6funt.
Le testateur et sa femme, la l6gataire universelle, avaient 6t6 mari6s depuis plus de vingt-cinq ans et ils n'avaient pas d'enfants.
II 6tait assez naturel que le mari laissAt A sa veuve, qui avait pris de soixante ans, les quelques biens qu'il avait pour lui permettre de vivre confortablement le reste de ses jours. Cette cause ressemble sous bien des rapports A celle de Craig v. Lamoureux (1) qui a t6 d~cid6e par le Conseil Priv6.
Les faits de la presente cause paraissent plus favorables A la validit6 du testament que dans cette cause de Craig v. Lamoureux (1).
Je reconnais bien le danger qu'il y a de maintenir des testaments sur le t6moignage du l6gataire lui-m~me.
Mais la d6cision du Conseil Priv6 dans la cause de Craig v. Lamoureux (1) favorise la validit6 des testaments dans des cas semblables A celui-ci.
Quant aux formalitds, je crois qu'elles ont 6t6 observ6es, surtout du moment que l'on accepte le t~moignage de la l6gataire universelle.
Le testament exprimerait la volont6 du testateur. I aurait 6t6 sign6 par lui en presence des deux t6moins qui auraient 6galement sign6 en sa pr6sence.
Il est bien vrai qu'il n'y a pas eu de demande expresse et formelle par le testateur A ces t6moins de signer, mais comme ils ont sign6 en sa pr6sence et imm6diatement apris lui il me semble que cette circonstance constitue une r6quisition suffisante pour assurer la validit6 du testament.
L'appel devrait 6tre maintenu avec d6pens de cette Cour et de la Cour du Banc du Roi et le jugement de la Cour Sup6rieure r6tabli.
J.-The plaintiff, respondent in this court, complains of the will, in the form derived from the laws of England, of his brother the late John Francis Wynne, bequeathing his entire estate to his wife, the present appellant.
As originally drafted, the respondent's action aimed at having the probate of this will set aside, and most of the fifteen paragraphs of the declaration were of the nature of an attack on the judgment of probate, while the conclusions asked merely that this judgment be set aside. By an amendment permitted at the trial, the respondent further alleged as paragraph 14a, that at the time he signed the will, John Francis Wynne was not compos mentis, and was unable to make a will and to acknowledge his signature on a will previously made. And by the same amendment he added to his conclusions the prayer that at all events the said will be annulled, resiliated and cancelled.
It is not unimportant to point out that up to the time of this amendment the respondent had apparently completely misconceived what was his remedy against the will in question. The judgment of probate has, in Quebec, a purely relative and prima facie effect, not going beyond identifying and proving the document presented as a will, so that authentic copies of the same (the will itself not being in notarial form never becomes authentic) may be delivered to interested parties. But, as stated by article 858 of the civil code, And as far back as 1872, in the case of Migneault v. Malo (1), the Judicial Committee of the Privy Council held that a judgment of probate in the province of Quebec was not conclusive, and that the heir-at-law of the deceased, although he had been cited and opposed the grant of probate, could nevertheless impugn the will. It is therefore evident that the judgment of probate is not res judicata, even as to a party who appeared and objected to the probate, and consequently the respondent's allegations concerning this probate are entirely unnecessary, not to say irrelevant, in an action attacking the will.
Irrespective of these allegations, the respondent's declaration attacks Wynne's will on four grounds:- 1. The will does not satisfy the requirements of article 851 C.C.
2. The appellant handed the said John Francis Wynne a document all written out, which Wynne signed but did not read to the witnesses, and when he signed it J. C. James was the only witness present, Robert Mellor was called in as a witness after the document was signed, and Fred Tuck was not present at all. 3. Wynne never spoke anything about the paper he signed nor referred to it as being his will, and did not in any-way acknowledge his signature to the said document as having been subscribed by him to his last will and testament.
4. On the 2nd of November, 1918, when Wynne signed the said document he was not compos mentis, and was unable to make a will and to acknowledge his signature on a will previously made.
It is noticeable that the will is not attacked for undue influence or fraudulent manoeuvres (suggestion et captation) by the appellant.
What Mrs. Wynne did is material only when taken in connection with the alleged grounds of nullity, and I must express the opinion that if Mrs. Wynne's testimony be believedand it was believed by the learned trial judge-she did nothing improper to obtain the signing of the will. It is very unfortunate that Fred Tuck died shortly before the trial-and inasmuch as he died of a lingering illness the parties should have obtained his testimony, or at least they should have shewn that he was incapable of giving it-but Mrs. Wynne says that her husband was under the impression, and so stated, that she would get everything without a will. She adds that Tuck told Wynne that he had better make a will and he agreed to do so, and as Wynne expressed the intention to leave everything to his wife, Tuck wrote out a very short form which the appellant copied and which eventually became the will attacked in this case.
Like many persons, Wynne disliked the idea of making a will, but this certainly does not shew that the will in question was forced on him, and I cannot see anything in the evidence that could support a charge of undue influence, if such a charge had been made.