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 "is to conclude its judgment," Mr, Clelan& very justly observed that the Court would not be justi- fied in evolving a suspicion not based on actual circumstances, But that is far from being the case here, whether we regard the matter from the standpoint of Mrs. Ingerson, or that of Hr, Ind and his witnesses, ¥rom her standpoint there is the complete transition, without anything like adequate or reasonable cause, from her previous benefactions, going pack in some respects twenty years, there is the inconsistency of her alleged conduct with her proved prior manner of conducting her affairs, and there is also the great improbability of her shewing sudden and secret confidence in strangers, as well as highly technical knowledge in framing a will, From the appellant's standpoint, the narrative given by him and hig two chief witnesses not only assumes a siftplicity of mind and a worldly innocence altogether incompatible with their stations in life and their proved experience, and indeed with the ordinary acquaint- ance of mankind, with every day affairs, but also includes a series of Soincidences Ji ttle, short of wonderful, It is unnecessary to enter into thé cetails hor' of wonderful. 28 28 Une ce Peary. wo SU See (3) improbabilities to which their story gives rise, it is sufficient to say it is not credible, and this appeal must fail, The appeal should therefore be dismissed with costs, ~f Heme Lr \ Ind ¥ a0 ellege ~ Judgment Higgins Je The ultimate diffioulty in the way of the mioceas of tie aypoal in this ease is that the lourned judge of first instanca,#ho Bay and heard the witnesses ,has not believed the truth of the plaiatiff's story. It is,@ of oourse,opon to us on the appoal to come to a different ounelvaion of fact, to deciss,virtually, that the judgo ought to have believed the story on tio ovidence;but,in my opinion,wo,who have not noard the evidence ,should not be justified in reaching such a conolusion,on the evidence as it stanis before us. Had the judgo decided, that, notwith= standing all the suspieious circunstances notwithstanding the sudden and extraordinary roveleion of feeling on the part of the testatrix which the story invelves,he believed tha story,the docision would probably have to stand. But ho did not s@ find, True,ho aéa not fiad that tho plaintiff and his witnessese--—-his conmissicn agent friends----wvere guilty of @ fraudulent conspiracy. It was sufficient for his purpose to say that he was not satisfied with the truth of their story. "r enter= tain" says the judgnont,"to say the least of it,a vory sorious doubt a wnether tho events to which thoy[the plaintiffts friends Pearson & " ve happened as I was told thay did happen, ceeeese Blunt}deposed could. vw easeeeseeeese TNO Gypearmnce of the document and the eircumstances disglosed in evidence have excited in my mind a grave suspicion whether the signdtvre,as it now appears,was really apyonded for the purpose of authenticating the contents of the inutrument,and under The cireum ae -vamges which would establish it as the last will of a free and competen'® " testatrix.. The burden of proving the fundamental fact of the knovhedye and intention of tho tootutrix,of proving that she knew and approved of the contents of the document, lay on the plaiatiff;and that burden has not been satisfied(Tyrrell vy Painton 1894 Prob 151). The judge at the trial was not under any obligation to accept the evidences of the plaint "iff and tho attesting witnesses as being truejand we cannot way that it ought to have beon ao acceptod, No judge is under an obligation to belicve a witness even if thero is no direct witness to the contrary. IT nesd not rastate the 8 of facts which the judgaent before us has so well and so fairly summarized. But I should Lliko to eall nore Specific attention to certain tacts {iia Barton,whe lived with the decoased,and whose evidence the learned judgo oxpressly accopts as to the condition uf tho deceased,says of her "ane could neither read nor ; , ! Waite after tho accident. Hor sight vas very bad. Inever saw hor sign her name after tie agciient. I never saw her try. So far aa I know,she novor wrote anything after the accident. Prior to that she used to '& write lottera to her erdenda This state of her eyes is confirmed by the evidence of Mz Angus,her winistor. According to him,the doceased Jady said,about the 1gth Nov 1926----3 or 4 daya after the signing of the alleged will-. -"There is @ letter from Mr Nicholson waich I nave 1 t no & oponed. xxeaateaxa 1 can't road it ond don't vndoratana". we Angus then read it to nor .fjon the 12th or 15th Nov 1925,this alleged Will having been signed on the ® Sth,the deceased spoke to Mr Angus in language whieh would bo uncistelligible unless she }elieved that her wil of the LOth Dev 1924 was vti11 to operate ay her last will. Finding that ahe had seat £80 to the Hey Mr Nicholson,in Scotland, instead of a ' hor annual gift of #4,@he suid It is lear ovyidenca I aon t know what qt a doing. Ne gets £16 nore than usual. Ky estate will stand it, and you know when ny will is proved you know he will got £100 for himeelf and #100 for the poor. This statement is consistent with the will of 10th March 34H/1924,and wholly incomsistent with the alloged will of 9th Nov 1925. (4)After the aceident in Octebor the plaidtiff used to visit the | docoased nearly overy day,and gave her brandy and egy beaten up. Mre whose evidence the Judge expressly accepts Grieve,statas that she never say the deceased the worse fer liquor exce,»t after the accident,whon she saw hor several times the worse for liquor, able vx Cloland, in his atgumont for the appellant,has relied strongly on ecortain summaries of the rolovant law as to proof of wills exypres@ed by my brother Isaacs in Nock ¥ Austin(25 C.L.R. 519,528),und in Bailey v Bailey(4 C,L.R.b70-b72), But it is a mistake to troat such wannarios aa if thoy wero an exnaustiye code applicable to all wills under all eirqumstances, Ky loarnacd! brotaer never roant hia summaries tu be Bo treated. AS he explains cloarly at p.570 of Bailey v Bailey,they are treated by him as "working propositions" Stating the effoat of the . . authorities ° teases like tho pronent'. It de the duty of the Court te eonsider the questions of capacity,undue influcnes, a intention to e*acute a document as a will »dieeetix,and not to loaa merely on expressions , seomype eee te yes te tee ioe of previous wee judges in the principles on whieh they act in particular eases. All depends, finally,on the strounstancenef cack case, In my opinion,the appeal nust be dismissed,