Wilson v Jones and Holliday

[1911] HCA 11

394 HIGH COURT

[1911.

[HIG H COURT OF AUSTRALIA.]

CHARLES ABRAHAM WILSON

A p p e l l a n t ;

D e f e n d a n t ,

FREDERICK CHARLES JONES

a n d ̂

GEORGE HUBERT STANFIELD R e s p o n d e n t s .

HOLLIDAY

P l a i n t i f f s ,

ON A PPEAL FROM TH E SUPREM E COURT OF

NEW SOUTH WALES.

H . C. OE A.

Will — Suit fo r probate — Costs — Testamentary capacity — Caveat — Reaaonabh

1911.                  grounds fo r opposing grant o f probate.

S y d n e y , The appellant filed a caveat against the grant of probate of a will and three

codicils to the respondents, upon the ground th a t their testatrix was not

M a y 8, 9, ] 0.

possessed of testam entary capacity.

firiffith C .J., Barton and

O’Connor J J .In a suit brought by the respondents for probate, Street J . found that the testatrix was of testam entary capacity, and ordered the appellant to pay the costs of the suit.

Held, that the finding as to testam entary capacity was fully Justified by the evidence, tha t the appellant could not have reasonably entertained any doubt as to the testa trix ’s capacity up to the date of the second codicil, and even if he had a doubt as to her capacity to make the th ird codicil, as substantially the whole of the costs were incurred in establishing the validity of the second codicil, he was properly ordered to pay the costs of the suit.

Decision of Street J . , 5th September 1910, affirmed.

A p p e a l by the defendant from the decision of Street J.

The plaintiffs -were the executors of the will and three codicils of Sarah Wilson who died on 28th December 1909. The suit was brought for probate of the will and codicils, against which

12 C.L.R.] OF AUSTRALIA.

395

the defendant, who was a son of the testatrix, had filed a caveat. R- C- op A

A similar suit was also brout^ht by the same plaintiffs against

Francis Hannah Hawker, and Lucy Rose Adelaide Mastin, who

W il s o n

V.

had also filed a caveat subsequently to the institution of the

J o n e s .

first-mentioned suit. Both suits were heard together, probate of the will and codicils was granted to the plaintiffs, and the defend­ ants were ordered to pay the costs of their respective suits. The defendants in the second suit did not appeal. The appellant appealed from the decision in the first-mentioned suit upon the grounds;—(1) that his Honor was in error in holding that the testatrix at the time of the execution of the will and codicils was possessed of testamentary capacity. (2) That his Honor should have directed the appellant’s costs to be paid out of the estate, or should have made no order as to costs.

I t is unnecessary to refer to the evidence in detail, but there was ample evidence, if believed by the learned Judge, to prove that the testatrix at the relevant times, was possessed of testa­ mentary capacity. His Honor was also of opinion, upon the evidence, that the defendants had no reasonable grounds for believing the truth of the case which they set up, and tha t there were good grounds for doubting whether they did in fact so believe it.

Bignold, for the appellant, contended that the finding of Street J. as to the testatrix’s testamentary capacity was against evidence, and that the evidence at the disposal of the appellant justified his opposition to the grant of probate.

Langer Owen K.C., and Whitfeld, for the respondents, were not called upon.

Griffith C.J. This is a hopeless appeal. The questions involved are questions of fact, depending almost entirely upon the oral evidence of witnesses examined before the learned Judge from whom the appeal is brought. Their credit, and the weight to be given to their evidence was preeminently a matter for liim. He has in a very full and careful judgment discussed the evidence, and stated his reasons for accepting the evidence of

[1911,

396   HIGH COURT

H . C. or A. some witnesses and rejecting tha t of others. 1 do not propose

to refer to the evidence in detail, but I will say this for myself

W il s o nthat, from the account that he gives of these witnesses, he could

V.hardly have come to any other conclusion than tha t at which he

J o n e s .

arrived.

Griffith

C .J.

The suit was for probate of a will and three codicils, made by a very old lady who was born in 1819. The appellant was the defendant in one of two actions brought by the same plaintiffs to establish the will. The procedure which allows two actions to be brought for the purpose, is, as far as I know, peculiar to New South Wales.

The ground of the appeal is th a t at the time of making the second and third codicils the testatrix was not of sound miud memory and understanding. I t is not necessary to say anything

with respect to the original will or the first codicil. The second

codicil was executed on 14th April 1903. By the will the tes­ tator had given the residue of her property to be divided between her son (the appellant), and her daughter Dinah Jones. By the codicil of 14th April 1903 she reduced the interest given to the appellant to a life interest, and gave the remainder after his death to her daughter Dinah Jones.

As to her sanity at th a t date there is abundant and conclusive evidence—the testimony of the solicitor to whom she gave the instructions, and other contemporaneous evidence—that she was then in full possession of her faculties.

The third codicil, which was dated 8th December 1906, merely changed the executors, and made no change in the beneficial dis­ position of the property. With respect to her mental condition a t that time it is proved that, in consequence of some disparaging remarks which the appellant had made, the testatrix caused her­ self to be medically examined by two medical men on 7th December, the day before the codicil was executed, and they were perfectly satisfied tha t she was then of perfectly sound mind. On that evidence, the learned Judge, disregarding, for the reasons he has given, some circumstantial evidence to the contrary, could come to no other conclusion than tha t the will and codicils were established.

But another question is raised as to the costs. The learned

12 C.L.R.] OF AUSTRALIA.

397

Judge ordered the appellant to pay the costs of the suit in which H- C. or A. he was defendant. The defendants in the other suit have not

appealed.

Street J. referred to the rule laid down by S ir James

W il s o n

V.

Hannen in Davies v. Gregory (1); “ Where the facts show that

J o n e s .

neither the testator nor the persons interested in the residue have

Griffith

C .J.

been to blame, but where the opponents of the will have been led reasonably to the bond fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course the opponents must have taken all proper steps to inform them­ selves as to the facts of the case, but if, having done so, they bond fide believe in the existence of a state of things which, if it did exist, would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs.” The learned Judge then said ;—“ I think there are good grounds for doubting whether the defendants really believed, at all events I do not think that they had any reasonable grounds for believing, the truth of the case which they set up. Mr. Charles Wilson’s own evidence and other evidence in the case renders it very difficult to believe that he can have really entertained any serious doubt as to the testator’s capacity prior to 1907 a t the earliest.”

So far as regards the codicil of 1903, which is really the only one affecting the substance of the case, a letter was put in evi­ dence written by the appellant to his mother three months after­ wards. I will not read it, but it is sufficient to say that it is inconceivable that any man could have written such a letter to his mother, relating to numerous family details, unless he believed that she was then in full possession of her faculties. For myself I should be prepared to go further than the learned Judge, who said it was difficult to believe that the appellant entertained any doubt as to the capacity of the testatrix in 1903, and say that it is established upon the evidence that he was fully aware that at that date she was in full possession of her faculties.

With regard to the third codicil, the evidence suggesting that she was then incapable of understanding what she did is of a shadowy character, and I do not find anything to show that the appellant really had any doubt about it. But, if he had, still, as

(1) L.R. 3 P. & M., 28, at p. 33.

Fo]lMiner~

^ r a m a

ALR467

[1911.

398   HIGH COURT

H . C. OP A. substantially the whole of the costs were incurred in establishing

the validity of the codicil of 14th April 1903, I do not think

W il s o nthat, even in tha t case, there would be any sufficient reason for

V.

altering the order made by Street J. as to the costs.

For these

J o n e s .

reasons I think th a t the appeal should be dismissed.

Griffith

C .J.

B a r t o n J . I agree. I t is only a weak form of expression to say that I share the doubt that Street J. expressed as to whether the appellant really believed the tru th of the case he set up.

O ’CoNNOE J.

I agree.

Appeal dismissed.

Solicitor, for appellant, A . D. Oliver.

Solicitor, for respondents, A. G. Ehswoi'th.

C. E. W.

FoilCons

S h a m \

Khatri v Price

Oooahew \

Terri'-

ALR S i ^ D_

Wan

167 FLR 391

ACSR271

[HIG H COURT OF AUSTRALIA.]

FEDERATED ENGINE-DRIVERS

A N D !

FIREMEN’S ASSOCIATION OF I

Claimants ;

A U S T R A L A S IA ..................................... J

H.

C. OP A

1911.

THE BROKEN HILL PROPRIETARY

R espondents,

M e l b o u r n e ,COMPANY LIMITED .

.

M ay 29, 30, 31; June 1,2.

Industrial Conciliation and Arbitration—

Industry,^' meaning o f—Registration of

S y d n e y ,

organization

Association o f employes— Certificate o f registration, effect of—

June

27.

Evidence o f existence o f dispute—Municipal corporation, exemption of, from

Griffith

C .J.,

Barton,

federal legislation—Municipal trading— Commonwealth Conciliation and Arbi­

O’Connor,

Isaacs and

tration Act 1904-1910 {No. 13 o/1904 and No. 7 o/1910), secs. 4, 21, 40a, 55,

Higrgins J J .

57.