Rogers v. Davies et al., [1932] SCR 407

Supreme Court of Canada

Rogers v. Davies et al., [1932] S.C.R. 407

Date: 1932-02-24

In the Matter of the Estate of Franklin David Davis, Deceased

Mary Jane Rogers (A Defendant) Appellant;

and

Helen Elizabeth Davis (Plaintiff) and Others (Defendants) Respondents.

1932: February 24.

Present: Duff, Rinfret, Lamont, Smith and Cannon JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Appeal—Will—Testamentary capacity—Concurrent findings of two courts below on questions of fact.

The appeal was from the judgment of the Court of Appeal for Ontario, affirming judgment of Rose, C.J.H.C., declaring that certain purported testamentary dispositions constituted deceased’s will. Appellant contended that no part of the last of the documents in question should be held to form part of the will, as it was not shewn that deceased, at the time of the making and execution of it, was of sufficient mental capacity or of a disposing mind, or understood or appreciated the document, or that it was the expression of his desires.

Held, that, as there was nothing to indicate that the trial judge misdirected himself, or that either he or the Court of Appeal failed to appreciate the facts, and as, in the courts below, there was nothing that could be described as a miscarriage of justice or a violation of any principles of law or procedure, this court should refuse to examine the evidence in order to interfere with the concurrent findings of the two courts below on what was a pure question of fact. (Robins v. National Trust Co., [1927] A.C. 515, at 517-518).

The principle laid down in Perera v. Perera, [1901] A.C. 354, at 361, as to extent of capacity required on executing a will prepared in accordance with instructions previously given, held applicable.

[Page 408]

APPEAL from the judgment of the Court of Appeal for Ontario, affirming the judgment of Rose, C.J.H.C., declaring that certain documents dated respectively November 16, 1926, January 20, 1930, and October 4, 1930, and purporting to be the last wills and testaments of Franklin David Davis, deceased, and a codicil to the first of such wills, except paragraphs 1 and 2 of the will dated October 4, 1930, constitute together the last will and testament of said deceased, and ordering that the proper court in that behalf do admit to probate the last will and testament of said deceased, so constituted.

The appellant contended that no part of the document dated October 4, 1930, should be held to form a part of deceased’s last will and testament, on the ground that the evidence did not shew that deceased, at the time of the making and execution of said document, was of sufficient mental capacity or of a disposing mind or understood or appreciated the document, or that it was the expression of his own desires.

J.H. Rodd K.C. and Roy Rodd for the appellant.

Gideon Grant K.C. and A.H. Foster for the respondent Helen Elizabeth Davis.

Gideon Grant K.C. and E.W. Haines for the respondent Annie M. Davis.

J.B. Aylesworth for respondents Ada A. Guppy and others.

J.M. Baird for the Official Guardian, representing certain infant respondents.

On the conclusion of the argument of counsel for the appellant, the Court retired to consider the case, and, on returning to the Bench, without calling on counsel for respondents, delivered judgment dismissing the appeal, costs to be payable out of the Estate.

DUFF J.—We are satisfied, Mr. Grant, that it is unnecessary to call upon you.

The principle of procedure by which we are governed is laid down by Lord Dunedin in the case of Robins v. National Trust Company[1], and I quote a few sentences from his judgment:

[Page 409]

This raises in a quite distinct way the question of whether their Lordships will examine the evidence in order to interfere with the concurrent findings of two Courts on a pure question of fact. Whether a man at the time of making his will had testamentary capacity, whether a will was the result of his own wish and act or was procured from him by means of fraud or circumvention or undue influence, are pure questions of fact. The rule as to concurrent findings is not a rule based on any statutory provision.

Then he says it is a rule of conduct, and a rule of conduct for the Empire, and “will be applied to all the various judicatures whose final tribunal is this Board”; and proceeds (pp. 517-518):

Being, as has been said, a rule of conduct, and not a statutory provision, the rule is not cast iron; but it would avail little to try to give a definition which should at once be exhaustive and accurate, of the exceptions which may arise. It will be sufficient to quote what has been said on this subject in the past:—

In Moung Tha Hnyeen v. Moung Pan Nyo[2], Lord Hobhouse, delivering the judgment of a Board which included Lord Macnaghten and Lord Lindley, said: “There has been nothing to show that there has been a miscarriage of justice, or that any principles of law or of procedure have been violated in the Courts below. This case is one which very decidedly falls within the valuable principle recognized here and commonly observed in second Courts of Appeal, that such a Court will not interfere with concurrent judgments of the Courts below on matters of fact, unless very definite and explicit grounds for that interference are assigned.”

In Rani Srimati v. Khajendra Narayan Singh[3], Lord Lindley repeated the view: “The appellants have failed to show any miscarriage of justice, or the violation of any principle of law or procedure. Their Lordships, therefore, see no reason for departing from the usual practice of this Board of declining to interfere with two concurrent findings on pure questions of fact.”

Now, we can see nothing to indicate that the trial judge misdirected himself; that either he or the Court of Appeal failed to appreciate the facts; still less, that there has been anything that could, by the widest stretching of the scope of the words, be described as a miscarriage of justice or a violation of “any principles of law or procedure.”

To repeat Lord Hobhouse’s words—no “definite and explicit grounds,” within the meaning of these judgments, have been brought before us for interfering with the judgment of the Court of Appeal. I might also add that this is a case for the application of the principle laid down by the Privy Council in Perera v. Perera[4], where the Judicial Committee accepted this statement of the law by Sir James Hannen in Parker v. Felgate[5]:

[Page 410]

If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he. should be able to think thus far: “I gave my solicitor instructions to prepare a will making a certain disposition of my property; I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.”

The appeal will, therefore, be dismissed.

(The question of costs was then discussed between the Court and counsel.)

DUFF J.—We think that, considering all the circumstances of this case, the costs should be payable out of the estate.

Appeal dismissed.

Solicitors for the appellant and for the respondent Genevieve Rogers: Rodd, Wigle, Whiteside & Jasperson.

Solicitors for the respondent Helen Elizabeth Davis: Fleming, Drake & Foster.

Solicitors for respondents Ada A. Guppy and others: Bartlet, Aylesworth & McGladdery.

Official Guardian (on behalf of certain infant respondents): McGregor Young.

Solicitors for the respondent Annie M. Davis (and solicitors on the record for certain respondents not appearing in this appeal): Haines & Haines.