IND V. SCOTCH COLLEGE 4/1927

jupem.

IND

v

SCOTCH

MR. JUSTICH ISAACS.

Delivered Qo Sptersies 24

im '

SOUTCH CULIEG.

JUDGIENT . BR, JUSTI

t ISAACS

The judgnent of vicr J, whieh is appealed from ie in substance

e refusal by the learned trial Judge to accept as true the story told Tiare

viva voce by the aypellant and his toe principal witnesses respe¢éting the circumataunees directly and indireetly connected with the execution of the document propounded ag the will of Mrs. Ingerson, To us, as an appellate tribunal wable by secing or hearing them to judge of the personal characteristics of thoac witnesses, their story comes not only with its own inherent improbabilities in the light of the sur- rounding facts, but also with the discredit of rejection, In such a case, where, as shewn by the cases referred in argument, the conscience

of the Court must be satisfied, the task of revorsing the primary decis-

ion is almost hopeless, To these authorities there may be added the

ease of deir v Grace (1899 25.C. (H.L.) 30), where at ». 30 Lord Chancellor Halabury said:- "Of course, it is the duty of the person *propounding a will to shew it is the will of the testator or testatrix. "That includes its execution, and the sanity and testamentary capacity "of the person who has executed it, If doubt is left on either of "these propositions, the ordinary sonsequencem of law follows, namely, "that the yerson whose daty it is to catablish the progositisn has

"failed to establish it, and therefore the judgment should be against

"him.®

(2)

The question to be determined in this appeal is whether the appel- lant has proved so satisfactorily as to leave no judicial doubt, that Mrs, Ingerson executed the document of November 9 1925 aa her last will, In point of form, no doubt, the testimony on behalf of the proponent would be sufficient to establish execution, But how far was the Court pound.to accept that evidence as true? Sir William Scott in the Odin Jl Chr, Rob., at p. 252) said:- "It is a wild conceit that any Court of "justice is bound by mere swearing; it is the swearing credibly that