relations and five hundred dollars to the Sick Children's Hospital, all the rest goes to the Foreign Missions of the Presbyterian Church. The will was completed by noon on November 17th, 1905, at the close of a two or three hours' visit, and was disclosed to no one, with the possible exception of the two subscribing witnesses (not examined). It was taken away by McConnell and not made known (even to his co-executor) until after the funeral on February 27th, 1906. On the other hand, it is clearly proved that the deceased was a weak and sickly man, mentally below the average, in age about sixty, but by reason of his infirmities more like a man of seventyfive or eighty years. In particular he had a severe attack of acute dysentery, which began on November 14th, 1905, and lasted until the 24th, during which he suffered great pain and was much reduced by physicking and opiates. His worst day was on November 17th (the date of the will), when the doctor called twice, at 9.30 a.m. and again about 3 or 4 p.m., and found the patient the same on both occasions, i.e., dull and somnolent; could be roused momentarily, but would drop off again and relapse immediately, so that in the physician's opinion he was unfit to make a will. This general condition given by his regular physician, Dr. Nidrie, is corroborated by a witness called for the defence, John Coulton, as to the "bad spell in November." A very experienced physician, Dr. McCarthy, having heard the evidence of Dr. Nidrie's treatment and condition of the deceased, was of like opinion, that there was a lack of mental capacity on November 17th. The character of Mr. McConnell for integrity and truthfulness was impeached by six witnesses of apparently respectable standingtwo of whom were Presbyterians as he was-the others without even a suspicion of the odium theologicum to which the trial Judge alludes. The evidence, however, indicates that the minister's tarnished reputation arose rather from his connection with the sale of stocks (Roller Bearing and Straw Cutting varieties) than from any doctrinal conflict. The two attesting witnesses were brought in by McConnell after the will had been completely drawn out; one his own wife and the other the wife of the other executor, Mrs. Madill. The deceased had been living with Mrs. Madill and her husband for eleven months before his death, and she was the nurse during this severe illness D. C. 1908 MADILL V. MCCONNELL. Boyd, C. D. C. 1908 MADILL V. MCCONNELL. "Boyd, C. in November; a more important witness as to his condition during that time and on that day (apart from the attending physician) could not be found. In this state of conflicting evidence, with no reason to prefer the testimony of the clergyman to that of the physician; with important witnesses not called and the evidence of the sole witness who proves the will, so seriously discredited, it seems a most dangerous precedent not only to sustain the will, but impose all costs on the relatives. True, some of them after probate accepted their small legacies, but they were without the knowledge of all the matters now disclosed; and even of the plaintiffs one is exempt from any criticisms. The whole difficulty arises from the prostrate condition of the deceased, and the secrecy surrounding the testamentary act. Though not benefitted directly by the will, the person who drew it is not without some interest, not only in regard to the executorial purposes, but also from the importance of upholding the land transaction he had with the deceased after the making of the will. Incompetency at the date of the will would imply incompetency to deal with the land, and enough is disclosed of that transaction to shew that it may reflect on the clergyman. This is unquestionably a case in which the usual course of the Court as to evidence should be observed. In the trial of an issue devisavit vel non the rule of the Court is to require that all the attesting witnesses should be examined, they being the witnesses of the Court and not of the parties; so that no fear of the parties saying, "this is your witness and the other is mine," shall ever prevent the Court of Equity, whose conscience is to be informed by the trial, from having all of them called. This is the doctrine. of Lord Eldon accepted by the House of Lords in McGregor v. Topham (1850), 3 H.L.C. 132, at p. 155-6. If a will is to be supported on the testimony of one witness as against a variety of suspicious circumstances, that witness must be of unimpeachable and unimpeached integrity: Brydges v. King (1828), 1 Hagg. Eccl. 256. The proof must be in proportion to the greatness of the suspicion; the greater the loss of capacity, the more stringent the necessity for adequate proof of the knowledge of the testator. These are well known maxims which must not be disregarded. The law as to the manner of executing and attesting a will, is not of form but of substance, in order to protect testators in their hours of weakness or of extremity. I fear that the men who draw wills, whether legal, lay or clerical, too often lose sight of the function of the attesting witnesses. Let me cite the memorable words of Lord Camden in Hindson v. Kersey (1760), as found in 4 Brown's Eccl. Law, 9th ed., p. 120: "What is their employment? I say to inspect and judge of the testator's sanity before they attest. If he is not capable the witnesses ought to remonstrate and refuse their attestation. In all other cases the witnesses are passive; here they are active and in truth the principal parties to the transaction; the testator is entrusted to their care." And he says again emphatically, in words carried into modern law by Taylor in his work on Evidence, 9th ed., vol. 2, sec. 1854, p. 1215, the reasons for calling all the attesting witnesses whom the law places around the testator appear to be substantially that: "Frauds are commonly practised upon dying men whose hands have survived their heads." Here a new trial is asked for, and it should be granted on the ground that there is reason to believe that a second trial may afford more satisfactory grounds upon which final adjudication may be found: Locke v. Colman (1836), 2 M. & Cr. 42. It remains to deal shortly with the question of costs. I think, according to the well established rules in probate practice, that costs should come out of the estate where the litigation has reasonably arisen out of the condition of the testator and the circumstances of secrecy which have been adverted to. I would refer to such cases as Goodacre v. Smith (1867), 1 P. & M. 359; Davies v. Gregory (1873), 3 P. & M. 28; Wilson v. Bassil, [1903] P. 239; and Spiers v. English, [1907] P. 122. One set of costs should be given to the plaintiff and those in the same interests, and one set to the charitable beneficiaries as between party and party, and one set of costs as between solicitor and client to the executors, and all to be paid out of the estate. That is intended to include the costs of the first trial and of this appeal. The other costs will be dealt with on the next trial. ANGLIN, J.-The circumstances surrounding the preparation and execution of the will in question in this action are in my opinion. such as should excite the suspicion of the Court. Unless the person propounding the will by affirmative evidence removes that sus D. C. 1908 MADILL v. MCCONNELL. Boyd, C. D. C. 1908 MADILL v. MCCONNELL. picion and satisfies the Court that the testator knew and approved of the contents of the will, probate should not be decreed. This rule is not confined to cases in which the will benefits the person by whom it is prepared: Tyrrell v. Painton, [1894] P. 151. The condition of the health of the testator, the fact that his brother with whom he was living was kept in ignorance of this will being made, and the disposition made of the bulk of his estate by the will, suffice to arouse suspicion as to his capacity and as to the methods by which his testamentary bounty was procured. The only evidence of regularity of execution, and practically the sole evidence of testamentary capacity, is furnished by the defendant McConnell, who is named as an executor, and who himself drew the will when alone with the testator. It is suggested that McConnell, though not directly interested as a legatee, is indirectly interested in the management of the estate, and that he may also derive some advantage from the large residuary bequest. However this may be, it is quite apparent that if Dr. Nidrie, the attending physician, told the truth, the testator was in such a condition throughout the day on which his will was prepared that it is scarcely possible that he could have had testamentary capacity. Dr. Nidrie saw him in the morning and again in the afternoon, and swears that on both occasions he was very drowsy and somnolent from the effects of opiates which were being freely administered. Upon the question of testamentary capacity Dr. Nidrie and the defendant McConnell are directly at issue. Dr., Nidrie has no apparent interest in the result of this action. a perusal of the proceedings does not disclose, the learned trial Judge discredited Dr. Nidrie's evidence and accepted that of the defendant McConnell. For reasons which Neither of the two witnesses to the will gave evidence. One of them-Mrs. Madill, a sister-in-law of the testator-was unable to attend the trial. The other witness-Mrs. McConnell, the wife of the defendant-was available. At the conclusion of the evidence of McConnell the learned trial Judge is reported to have said, "I do not insist upon the witnesses to the will being called unless you insist upon it, Mr. Cassels." Mr. Cassels represented the principal beneficiaries. This probably accounts for Mrs. McConnell not having been called as a witness. In my view the suspicion surrounding this will was not sufficiently cleared away by the evidence of the defendant McConnell. In every case where solemn probate is required at least one of the witnesses to the will should be examined if possible: Belbin v. Skeats (1858), 1 Sw. & Tr. 148. But where there are reasons to suspect the capacity of the testator and the influences affecting him when the will was in course of preparation, the testimony of the witnesses to the will, if they are alive, seems to me almost indispensable. Upon the ground that the trial did not remove the suspicion which the defendants propounding this will were bound to clear up so as to satisfy the conscience of the Court, there should in my opinion be a new trial of this action. Had the learned Judge not himself dispensed, apparently spontaneously, with the testimony of the witnesses to the will, it may be doubtful if the defendants would have been entitled to this indulgence. As the contention of the appellant that the residuary gift to the Presbyterian Church is void because in contravention of the statutes respecting Charitable Uses, commonly known as the Statutes of Mortmain, was fully argued, it is perhaps better that it should be now disposed of, in order that it may not be necessary to deal with it upon the new trial which we direct. Counsel for the appellant argued that because the will of the testator was not made more than six months before his death this gift cannot take effect. His contention is that because the special Act, 38 Vict. ch. 75, sec. 20 (O.), validating testamentary gifts of realty or impure personalty in favour of the Presbyterian Church in Canada made by a will executed at least six months before the death of the testator, stands unrepealed, the general provisions of R.S.O. 1897, ch. 112, have no application to such gifts. I am unable to agree with this view. In the first place the special Act does not declare that gifts made by will executed within six months of the testator's death shall be invalid. The invalidity of such gifts depends upon the general statutes in regard to charitable uses. The Revised Statute is by sec. 10 inferentially made applicable to all devises or legacies which would have been void if made by a testator dying before April 14th, 1902. That Act, subject to certain conditions, removes in favour of all devises for charitable uses the restrictions which special Acts had partially removed in favour of certain charitable and religious D. C. 1908 MADILL V. MCCONNELL. Anglin, J. |