Discussing now the grounds of nullity alleged by the respondent, and dealing first with the fourth ground, the learned trial judge found on the facts that the will was signed by Wynne when of a free and disposing mind, and of sound intellect. What gives great weight to this finding is that it necessarily reposed on the credibility of the witnesses, especially of Mrs. Wynne.
Moreover the physician called, Dr. Anderson, did not prove a general state of incapacity of the testator. He said that Wynne, who was dying of Bright's disease, was suffering very great pain; that twice a day, at eleven in the morning and at eight in the evening he administered morphine to quiet him, and that the effect of the narcotic would last two or three hours.
This will was signed after two p.m., and in view of the testimony of the witnesses to the will, James and Mellor, it seems impossible to conclude that the finding of testamentary capacity by the learned trial judge should be set aside.
I will now consider together the three first grounds of nullity which relate to the execution of the will itself. It is true that Mrs. Wynne handed her husband a document all written out, and that Wynne signed it but did not read it to the witnesses, nor was it necessary that he should do so.
When Wynne signed the will, both James and Mellor were present and signed as witnesses in presence of the testator. No formal attestation clause was required and their signatures as witnesses sufficed.
Tuck was not present at the execution of the will and signed it afterwards, but he cannot be considered as a witness to the will which however does not matter because two witnesses are sufficient.
Wynne did not speak to the witnesses about the will and did not acknowledge his signature to them as having been subscribed by him to his will.
However, as Wynne signed in the presence of the witnesses James and Mellor, it is immaterial whether he acknowledged this signature which they saw him make.
It was entirely un- Mignault necessary that he should do so.
So far the will stands the test of article 851 of the civil code which is as follows-- 851. Wills made in the form derived from the laws of England, whether they affect movable or immovable property, must be in writing and signed at the end with the signature or mark of the testator, made by himself or by another person for him in his presence and under his express direction, which signature is then or subsequently acknowledged by the testator as having been subscribed by him to his will then produced, in presence of at least two competent witnesses together, who a .est and sign the will immediately, in presence of the testator and at his request.
Females may serve as attesting witnesses and the rules concerning the competency of witnesses are the same in other respects as for wills in authentic form
But it is said that the witnesses, who undoubtedly signed the will in the testator's presence, did not do so "at his request."
Mellor testified as follows:- Q. Who was present when you signed that will as a witness? A. Mr. James, Mrs. Wynne, myself and . the deceased, she late Mr. Wynne.
Q. Who received you at the door?
A. I think it was Mrs. Wynne; I am not sure.
I walked right in.
Q. Did Mrs. Wynne talk to you about the will, then when she opened the door for you?
A. No, only when we walked right up to the bed.
Q. What did she say then?
Mellor also says that when he entered he asked Wynne how he was, and the latter answered "not well, not well."
Both James and Mellor say that the testator recognized them.
As to the signature of the witnesses at the request of the testator, undoubtedly this is a requirement article 851 C.C., although it is not mentioned in the English Wills Act, 1 Vict., ch. 26, from which article 851 C.C. is derived. But it is to be remarked that when the will is signed or marked by another person than the testator, article 851 requires the "express direction" of the testator, while with regard to the signature of the witnesses at the request of the testator, nothing is said as to the form of this request. In my opinion, inasmuch as the legislature, in speaking of the direction or request of the testator, requires it to be expressed in one case and not in the other, it follows that this request can, in the latter case, be implied by reason of the circumstances surrounding the execution of. the will.
Here Mellor testified that Mrs. Wynne, when the witnesses and she had walked right up to the bed, asked them if they would be witnesses and put their signatures on the will, and that she said this aloud to both of them. The request she thus made to James and Mellor must have been heard by Wynne, who then signed the will and saw or could see the witnesses sign it in his presence. In my opinion, but I say this with every deference for the majority of the learned judges of the Court of King's Bench who thought otherwise, it would be pushing formalism too far to reject this will for the lack of an expressed request of the testator to the witnesses, and the more so as this is an essentially simple and popular form of will, which undoubtedly the legislature desired to render as easy as possible to the least educated of the population.
If it be contended that Mrs. Wynne who went for the witnesses and asked them to attest the will, had no mandate from Wynne to do so, I would answer that evidently no express mandate was required. And the question really is whether Wynne intended to make a will and dispose in favour of his wife, and unless Mrs. Wynne's testimony be discredited, I J. must find that he did.
The obtaining of witnesses, although essential, was not, under the circumstances disclosed by the evidence, a matter requiring any kind of mandate from the testator, for if we must take it as established that he wished to make a will, getting the witnesses necessary for the validity of the will was merely carrying out his desire.
It may be that this will is quite near to the danger point, but after full consideration I find myself unable to set it aside and nullify the very natural and reasonable disposition which Wynne made of his property, for he and his wife had been long married and had no children.
Of course, Tuck's affidavit in support of the probate was untrue, as he did not see Wynne sign the will, although he probably could identify his signature. But nothing would now be gained by annulling the probate, for the testimony of James and Mellor shews that Wynne really signed the will. And, in my opinion, the attack on the will itself fails. I would therefore allow the appeal with costs here and in the Court of King's Bench and restore the judgment of the learned trial judge.
Appeal allowed with costs.