D. C. 1907 Oct. 30. 1908 Feb. 5. [DIVISIONAL COURT.] MADILL V. MCCONNELL. Will-Mortmain and Charitable Uses-Presbyterian Church in Canada— A residuary devise of realty to the Foreign Missionary Society of the In an action to impeach a will on the ground of undue influence, it should not be upheld on the evidence of one witness, whose credibility is attacked, when the attesting witnesses may also be examined; and a new trial was ordered in this case because this had not been done. As a general thing, witnesses to a will should 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. Judgment of Riddell, J., at the trial reversed. THIS was an appeal by the plaintiffs from the judgment of Riddell, J., at the trial. The action was brought by the plaintiffs, on behalf of themselves and of other heirs-at-law and next of kin of Joseph Madill, against the executors of the will of Joseph Madill, the Toronto Hospital for Sick Children, the board of trustees of the Presbyterian Church in Canada, and certain other beneficiaries under the will and heirs-at-law and next of kin of the testator, to have the will declared invalid on the ground of undue influence, and in the alternative for a declaration that the residuary devise and bequest contained in the will, which was in favour of the Foreign Missionary Society of the Presbyterian Church, be declared void, and for administration. The facts of the case are sufficiently stated in the judgments. The action was tried at the non-jury sittings at Barrie on October 28th, 1907. G. W. Bruce, for the plaintiffs. H. Cassels, K.C., for the Presbyterian Church in Canada J. Porter, for the executors. C. E. Hewson, K.C., for the other defendants. D. C. 1907 MADILL v. October 30. RIDDELL, J.:-An action tried by me without a jury at Barrie. The statement of claim alleges that the late Joseph Madill, being under the influence of his pastor, the Rev. Mr. McConnell was, while he was in a weak and enfeebled condition of MCCONNELL.. body and mind, induced by him to make a will; that this will was so made by Joseph Madill when he was not of testamentary capacity; that the will was not properly executed; and that the provisions of the said will were ineffectual in law. I may say at once that there is no foundation for the claims as to undue influence, irregularity of execution and incapacity of the legatees. The only question is whether the testator was at the time of testamentary capacity. Considerable evidence was given of a more or less vague character indicating a failure of physical and mental power; and Dr. Nidrie, the attending physician, gave more specific evidence, Dr. McCarthy being then called as an expert to give his opinion upon the evidence of Dr. Nidrie. The defendant McConnell being called, gave a very detailed account of the circumstances under which the will was drawn; and it is admitted that if he is to be believed the decedent was of testamentary capacity and the will must stand. The plaintiffs, recognizing this fact, called a number of neighbours to testify that from the reputation of McConnell they would not believe him on oath. Some of these witnesses spoke from dealings they had had themselves with McConnell, but in the case of others all the conditions of such evidence were fulfilled. Several of these witnesses belonged to a malcontent section of the reverend gentleman's church, and some, as 1 have said, had business dealings with him. He appears to have been agent for Roller Bearing and other stock, and to have sold some of these to his friends. Even with the altered meaning of the word, it seems as unwise now as it was 1900 years ago for those sent to preach to carry scrip; many cases in the courts have shewn the danger of serious trouble arising from ministers dealing with such precarious merchandise and this both to themselves and others. I did not and do not place much reliance on this character evidence. Much of it was clearly given gladly and with a desire to injure the minister; and much of it was given without a thorough understanding of the foundation upon which such evidence should be based. Riddell, J. D. C. 1907 MADILL v. MCCONNELL. Riddell, J. At all events, from the conduct and demeanour of Mr. McConnell in the box, I was and am convinced that he was telling the truth. Dr. McCarthy was not recalled after the evidence of Mr. McConnell; and it was admitted that he would and must say that the decedent had a disposing mind if Mr. McConnell was telling the truth. The opinion of Dr. McCarthy was based wholly or mainly upon the evidence of Dr. Nidrie-and I do not place entire confidence in the accuracy of that evidence. Where the evidence of Mr. McConnell and that of Dr. Nidrie are inconsistent, I accept the evidence of the former. In all cases I judge of the credit and weight to be given to the evidence by the conduct and demeanour of the witnesses. Had I the slightest doubt as to the substantial accuracy of the evidence of Mr. McConnell (which I have not), it would be removed by the evidence of the Rev. Mr. Mackay (against whom there is no imputation). He gave evidence of conversations with the deceased a few months before the will was drawn, which indicated that his mind was running in the direction the will displays. Moreover, no benefit of any kind accrued to Mr. McConnell from the provisions of the will-the suggested benefit of executor's remuneration he would equally receive if the will were drawn in any other way—and if he could be such a rascal as to have a will made by an incompetent man, the natural thing to expect would be that he would take care to have some substantial benefit for himself or his. I find that the charges against Mr. McConnell are absolutely and entirely without foundation in fact, and that the action should be dismissed. In the exercise of my discretion, I direct that the costs of the executors and of the Church be paid between solicitor and client by the plaintiffs and the defendants who made common cause with them, i.e., Mary VanAllen, Jennie Southall, Letitia McLaren, Richard Langtry and Frederick Thornbury. Counsel for these stated at the trial that they were making common cause with the plaintiffs, and he assisted counsel for the plaintiffs throughout with suggestions. The practice of bringing action in the name of some only of the next of kin and making the other parties defendants is sometimes necessary, but parties so made defendants should understand that if they make common cause with the plaintiffs they do so at their peril as to costs, and that the fact that in form they are defendants will not protect them. My power to award costs between solicitor and client in such a case as this seems to be established by Andrews v. Barnes (1888), 39 Ch.D. 133; Sandford v. Porter (1889), 16 A. R. 565, and cases cited (although the rule may be different in a purely common law action: Cree v. St Pancras Vestry, [1899] 1 Q.B. 693, at p. 698). And it has been held in England and here that a successful party may be ordered to pay the costs of the unsuccessful party: Myers v. The Financial News (1888), 5 Times L.R. 42; Neale v. Winter (1862), 9 Gr. 261. So that, even if it could be considered that these defendants were (as they are not) successful, they might be ordered to pay costs. The executors will be entitled to all costs out of the estate between solicitor and client which they cannot make out of those ordered to pay. The Presbyterian Church being residuary legatees, it is unnecessary to make such an order as to them. The appeal was argued before BOYD, C., ANGLIN and MABEE, JJ., on January 24th, 1908. G. W. Bruce and N. B. Gash, for the plaintiffs, cited as to the question of mortmain: Re Huyck (1905), 10 O.L.R. 480; Douglas v. Simpson, [1905] 1 Ch. 279; Maxwell on Statutes, 4th ed., pp. 237, 244; Hardcastle on Statutes, 3rd ed., pp. 330, 332-7; 38 Vict. ch. 75 (O.); R.S.O. 1897, ch. 112, sec. 4; 2 Edw. VII. ch. 2, sec. 7, sub-sec. 1, 6,0. They contended that Re Kinny (1903), 6 O.L.R. 459, was founded on English decisions, whereas the English Mortmain Acts are the reverse of those in Ontario. They also referred to Wilson v. Wilson (1875), 22 Gr. 39; Waterhouse v. Lee (1863), 10 Gr. 176; Donaldson v. Donaldson (1866), 12 Gr. 431; Freeman v. Freeman (1889), 19 O.R. 141; Fulton v. Andrew (1875), L.R. 7 H.L. 448; Robson v. Rocke (1824), 2 Addams 54; Taylor's Medical Jurisprudence, 5th ed., p. 856; Amer. and Eng. Encycl. of Law, 2nd ed., vol. 28, p. 770. H. Cassels, K.C., for the Presbyterian Church in Canada, referred to Adams v. McBeath (1897), 27 S.C.R. 13; Baudains v. Richardson, [1906] A.C. 169, 179; 63 Vict. ch. 135 (O.). C. H. Porter, for the executors. D. C. 1907 MADILL v. MCCONNELL. Riddell, J. D. C. 1908 MADILL v. MCCONNELL. Boyd, C. February 5. BOYD, C.:-The bequest to the Foreign Mission of the Presbyterian Church of mixed property is valid under the Ontario Act of 1874, 38 Vict. ch. 71, sec. 10, and 63 Vict. ch. 135, which impose the condition that the will be made at least six months before the death of the donor. This condition is removed by the General Act, R.S.O. 1897, ch. 112, sec. 4, and this amending law is not restricted as to testamentary dispositions by the later Act of 1902, which is now to be found in vol. 3 of the R.S.O. at ch. 333. The appellant relied on sec. 7, sub-sec. 6, as re-imposing the six months' limit. This argument rests on the meaning to be given to the word "assurance" used in the section. He relies on the interpretation clause of the Act, sec. 2 (1), which declares that assurance includes a gift by will; but it is to be noted such may be the import "unless the context otherwise requires." The context in sec. 7, sub-sec. 6, shews that the assurance referred to is one which may be made "in good faith for full and valuable consideration," language which repels the idea of a voluntary and ambulatory testamentary instrument. Such has been decided in Re Kinny 6 O.L.R. 459, by my brother MacMahon, and in Re Barrett (1905), 10 O.L.R. 337, by my brother Teetzel, and also recognized by me in a later decision, Re Battershall (1907), 10 O.W.R. 933. The bequest for missions is a charitable use: Toronto General Trusts Co. v. Wilson (1895), 26 O.R. 671, and so the benefaction falls within the very words of R.S.O. 1897, ch. 112, sec. 4, which is not controlled by the special Act as to the Presbyterian Church. I do not think, therefore, that the appellant can claim any relief on this ground. Upon the other branch of the appeal, asking for a new trial, I agree with both my colleagues that a sufficient case is made out upon the evidence already before us to call for more searching inquiry as to the validity of the will. Briefly, I will set forth my reasons for this conclusion. At present the will is proved by the sole testimony of the person who drew it, and who is one of the executors, Rev. J. A. McConnell. According to his evidence, the testator dictated the whole of the will as he wrote it down. He made no suggestions; all emanated from and was originated by the deceased. He was told by the deceased that the estate was worth about sixteen thousand dollars, and with the exception of nineteen hundred dollars given to eight |