Lamoureux v. Craig

Lamoureux v. Craig
Collection
Supreme Court Judgments
Date
1914-02-03
Report
(1914) 49 SCR 305
Judges
Fitzpatrick, Charles; Idington, John; Duff, Lyman Poore; Anglin, Francis Alexander; Brodeur, Louis-Philippe
On appeal from
Quebec
Subjects
Estates
Decision Content
Supreme Court of Canada
Lamoureux v. Craig, (1914) 49 S.C.R. 305
Date: 1914-02-03
Arzélie Lamoureux (Plaintiff) Appellant;
and
Isaie Craig (Defendant) Respondent.
1913: November 20, 21; 1914: February 3.
Present: Sir Charles Fitzpatrick C.J. and Idington, Duff, Anglin and Brodeur JJ.
ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Will—Execution—Testamentary capacity—Undue influence—Captation—Approval by testatrix—Evidence—Beneficiary propounding will—Onus of proof.
A person propounding a will, in the preparation of which he was instrumental and by which he is sole beneficiary, is obliged to support it by evidence sufficient not only to shew that the will was duly executed, but also to justify the righteousness of the transaction and to establish that it truly expresses the last testamentary wishes of the testator and that the testator knew and appreciated the effect of its dispositions and approved of them.
Two days before her death the testatrix, to whom morphine was being administered to alleviate pain, executed two wills in the English form. She requested her husband to have a will prepared and, on his instructions, his brother, an advocate, drafted a will whereby the husband was made sole beneficiary. Upon this will being read over to her, in the forenoon, the testatrix took exception to it because it ignored a promise, made to her father, that certain property she had received from him should ultimately revert to members of her own family; and she did not then execute it. Another will was drafted by the husband’s brother to meet her wishes, but, either on account of her drowsiness or because of the presence in her bedroom of friends, including her sister, the plaintiff, the second will, though ready at noon, was not presented to the testatrix for signature until late in the afternoon, when she attempted to sign it, but the brother declared it worthless owing to the illegibility of the signature. On being told of this opinion, the will read to her in the morning, or one similar in its contents, was presented to her for signature and her husband offered to read it to her, but she declined to have this done, saying that she had already heard it read and knew its contents; she then signed it with her mark in presence of witnesses. In an action to set aside the last will, the evidence failed to establish that the testatrix understood its contents and the difference between its provisions and those of the will which she had attempted to sign, nor did it remove suspicion arising from the fact that the impeached will had been prepared under the instructions of the sole beneficiary, and other peculiar circumstances attending its execution.
Held, reversing the judgment appealed from (Q.R. 22 K.B. 252), the Chief Justice dissenting, that the evidence failed to establish that the will in question expressed the true last testamentary wishes of the testatrix and, consequently, that it should be set aside.
Barry v. Butlin (2 Moo. P.C. 480); Fulton v. Andrews (L.R. 7 H.L. 448); Tyrrell v. Painton ((1894), P. 151); McLaughlin v. McLennan (26 Can. S.C.R. 646); Brown v. Fisher (63 L.T. 465); St. George’s Society of Montreal v. Nicholls (Q.R. 5 S.C. 273); Harwood v Baker (3 Moo. P.C. 282); Tribe v. Tribe (13 Jur. 793); Mignault v. Malo (16 L.C. Jur. 288), and Mayrand v. Dussault (38 Can. S.C.R. 460), referred to.
APPEAL from the judgment of the Court of King’s Bench, appeal side[1], reversing the judgment in the Superior Court, District of Montreal[2], and dismissing the plaintiff’s action with costs.
The circumstances in which it was sought to set aside the will in question are stated shortly in the head-note and are fully set out in the judgments now reported.
Surveyer K.C. and Hurteau for the appellant
A. Cinq-Mars, for the respondent.
The Chief Justice (dissenting).—The will in this case is attacked on several grounds. I quote from the plaintiff’s declaration:— (1) Le dit testament est nul et entaché de nullité pour cause d’erreur de la part de la testatrice, de dol, de suggestion et de captation de la part du défendeur et d’autres personnes d’après lui au moment où le prétendu testament parait avoir été fait; (2) les formalités relatives au testament suivant le mode dérivé de la loi d’Angleterre et relatées dans les articles 851, 852, 853, 854 et 855 du code civil n’ont pas été remplies dans le cas actuel; (3) au jour et à l’heure où le testament parait avoir été fait, la testatrice, dame Flore Lamoureux, vu son état de grande faiblesse, tant de corps que d’esprit, les médicaments qu’on lui servait, les souffrances atroces qu’elle endurait, ne pouvait donner un consentement entier et valable à ce prétendu testament.
That the will was duly executed was found by both courts below. The trial judge found against the will on the ground that the husband of the deceased induced her to sign it on the false representation that the previous will was invalid because the signature was illegible. Whether it was or not, I submit respectfully, is not in issue here, but that the husband was so informed by his brother, a professional man, cannot be doubted. I understand that the majority here is of opinion that the will in question was properly executed and that the testatrix was of sound and disposing mind, but that it does not truly express her last intentions and that she was in error as to its provisions when she signed it.
What are the facts? The parties married in Quebec, under what is known there as a “régime de séparation de biens.” The husband, therefore, would not, in case of intestacy, inherit anything from his wife. They apparently lived together for twenty-seven years. During all that time the wife was under the impression that the last survivor would inherit everything. When the attention of her husband was drawn to the true situation, his observation was “in my wife’s present condition, I am not to trouble her about such things.” This is not evidence of rapacity on his part. The respondent’s father saw the priest who was about to attend on the deceased and he was asked to speak to her about her temporal affairs, and it was only as a result of that interview that the husband came to interfere in the matter at all. For what occurred when the wife gave her instructions to draw the will we must rely entirely upon his evidence. He says that her suggestion was that he should have the property, but that, when he came finally to dispose of it, he should bear in mind her promise to her father to give what she had received back to her family. I read the husband’s evidence to mean that the deceased was prepared to execute the will leaving everything to him on his personal undertaking to comply with her request. He thought, however, that it would be more satisfactory to have the wife’s wish expressed in the will itself. Hence the change.
If anything is clear in this unfortunate controversy, it is that the wife’s wish was to give her husband her estate, relying upon him to carry out her verbal request with respect to her family, and the effect of this judgment is to defeat that intention. For that reason I think the appeal should be dismissed. As the evidence was carefully and ably analyzed by the Chief Justice of the Court of King’s Bench, I do not think it necessary to do more than to say that I adopt his conclusions as well as his reasons.
Idington J.—The respondent’s late wife, whose health had not been very satisfactory for some time, fell rather suddenly very ill. She was nervous and suffered such pain that her physician, in order to alleviate her sufferings, administered morphine. He intimated to her husband that her condition was such that her spiritual adviser should be called in, and the reverend Father Charbonneau was accordingly sent for. On his reaching the house, he was interviewed by the father of the respondent, domiciled with him, and asked to bring under the notice of the sick woman the fact that her worldly affairs were not settled and to advise her to consider same.
Something is sought to be made of the different versions given on the trial hereof, by respondent’s father and the priest, both as to what transpired at this interview and what the priest reported to him after leaving the sick-room of the dying woman.
I attach little importance to any such discrepancy, though accepting the priest’s version of what was said.
The eagerness of respondent’s father is, of course, the subject of fair criticism. But the important thing to be observed is that it was not until after the priest had discharged his duties as required, by administering the last rites of the church to the sick woman, that the subject of making a will had ever been considered by her.
Immediately after the departure of the priest, respondent tells that he was called into her room and, when the nurse had retired and no one else present, he was spoken to by her on the subject of her worldly affairs which, up to then, she had seemed to think settled.
The result of what seems to have been a very brief interview was that the brother of the respondent, also living in the same house and an advocate by profession, was asked to draw a last will and testament for his wife according to instructions given by him. The brother, accordingly, without any interview with her, drew up the following very short will:—
Par mesure de prudence, et sans me croire nullement dangereusement malade, je prends, à tout énvénement, les présentes dispositions: Je donne et lègue, sans restriction, à mon époux, Isaîe Craig, tous mes biens, tant immeubles que meubles, sauf les cadeaux qu’il jugera à propos de faire à mes proches comme souvenirs. Et je déclare ne pouvoir signer.
When this wals read to her by respondent, she, as he testifies, said:—
Si tu pouvais faire quelque chose pour ma famille; mon père m’a toujours demandé de penser à eux autres en autant que la chose serait de mon goût, j’aimerais que tu ferais la même chose si tu peux.
He says that, thereupon, he withdrew and instructed his brother accordingly. The brother drew then a will which reads as follows:—
Outremont, Montréal, 5 Juillet, 1911.
Par mesure de prudence et sans me croire dangereusement malade, je prends à tout événement les présentes dispositions: Je donne et lègue à mon époux, Isaîe Craig, tous mes biens tant immeubles que meubles, sauf les cadeaux qu’il jugera à propos de faire à mes proches, comme souvenirs. Suivant les recommendations de mon défunt père, je lui recommande de même de ne donner ou léguer ces dits biens à nuls autres qu’aux membres de ma famille, et je signe.
Flore Lamotjreux.
I omit in each case the attesting clause signed by the witnesses, I desire only to present the actual operative form of each of these wills. All this took place about half-past ten or eleven o’clock in the morning of the 5th of December.
Why she was not asked to sign this latter will till five o’clock in the afternoon is not, to my mind, at all clearly established beyond suspicion.
It is said, by and on behalf of the respondent, that she slept and only awoke about five o’clock.
It appears, however, that her sister, the appellant, had called about eleven o’clock in the forenoon and stayed until five p.m. Nothing was said to her of these wills or of the purpose that existed relative thereto. It may be but a coincidence that she slept whilst the sister remained, but I cannot rid my mind of the suspicion that her sister’s presence was equally a barrier in the way.
However that may be, the sands of life were meantime ebbing fast, for in forty hours she was dead. The stock of vitality which was able in the morning to discuss the difference between the will first read to her and what it omitted and she would have preferred to have it provide for, had become so low at five o’clock that she could not write her name so as to be legible when she attempted to subscribe the second will and, obviously, could not see the material difference between them, and treated the one as the equivalent of the other.
We are asked to believe as conclusive of her capacity to understand that she asked if this one to which she set her mark was the same as read in the morning, and to have her spectacles handed to her.
There is a marked difference between these two wills. And the fact that she did not observe it seems conclusive that she did not apprehend clearly what she was doing or saying.
I am not concerned with any difference in their legal effect. I cannot assume that she was possessed of that legal knowledge and acumen that would have enabled her to decide that they were (if they were) in law the same.
To the ordinary mind they were as widely different as can be on the point she had called attention to in the morning and requested consideration of. She had forgotten. She had been drugged. She, when aroused from the slumber that induced, clearly had not that grasp of thought to enable her to discover this vast difference in language. That difference ought, but for the condition of mind thus induced, to at least have revived her memory relative to what she had requested. Nay, more, her request, veiled in the language of affection and politeness as quoted above, ought, to my mind, to have been treated by her husband as that of a command, or have, at least, driven him to the straight course of bringing to his wife the adequate assistance in the way of the independent skill of some one to whom she might have given instructions freed from the embarrassment of his presence.
The dying are entitled to such consideration at the hands of those they have loved and cared for. Or if he had even taken the appellant into his confidence and left the sisters to settle the matter and the dying woman had then, as the result of such consideration, persisted in leaving it entirely in his discretion whether she should leave him absolute owner or not, he would have possibly been relieved from the suspicion he must now forever rest under.
He has not removed it so as to comply with the law as laid down in the leading cases of Barry v. Butlin[3], and Fulton v. Andrew[4].
In the latter case, at foot of page 471 and top of page 472, Lord Hatherly uses language to be borne in mind in such cases as this. It is as follows:—
There is one rule which has always been laid down by the courts having to deal with wills, and that is, that a person who is instrumental in the framing of a will, as these two persons undoubtedly were, and who obtains a bounty by that will, is placed in a different position from other ordinary legatees who are not called upon to substantiate the truth and honesty of the transaction as regards their legacies. It is enough in their case that the will was read over to the testator and that he was of sound mind and memory, and capable of comprehending it. But there is a further onus upon those who take for their own benefit, after having been instrumental in preparing or obtaining a will. They have thrown upon them the onus of shewing the righteousness of the transaction.
“Now,” again adopting the language of Lord Hatherly, “how did the respondent discharge this onus in the present case”?
What I have related and suggested answer that he failed.
But, when we find that she left no children, that her property came from her father, that her sister had children surviving, that her father had extracted from her a solemn promise that the property should return ultimately to his family, the hopes and wishes she had expressed to her husband, so illuminated by such facts and read in light of the law applicable to one directing all and so directing it as to make the result enure entirely to his benefit, seem to have been so disregarded that this instrument cannot be called her will.
I think we must find that he undoubtedly failed to discharge the onus resting upon him.
There is much that might be said relative to the details of the execution and attestation of this pretended will but, in view of the answer which these broad features of the case present, it seems needless to dwell on such details.
The appeal should be allowed with costs throughout and the judgment of the learned trial judge be restored. Duff J. concurred with Brodeur J.
Anglin J.—This case has given me not a little trouble and anxiety. Three questions arise: First: Had the testatrix mental capacity? Second: Was the will propounded by the defendant duly executed? Third: Does the evidence sufficiently remove the suspicion created by the facts that the instrument in question was prepared under the instructions of the husband of the testatrix, the defendant, who is the sole beneficiary, and its execution was procured by him—a suspicion which is augmented by the peculiar circumstances of this case—and establish that it expresses the true last will of the testatrix and that she knew and approved of its contents? Tyrell v. Painton[5].
The evidence has satisfied me that the testatrix had testamentary capacity at certain times on the day in question. McLaughlin v. McLellan[6]; Martin v. Martin[7]; Kaulbach v. Archbold[8]. From about noon until after four o’clock she slept most of the time under the effect of a dose of a quarter of a grain of morphine administered about eleven o’clock. She appears to have been awake and fully conscious from about half-past four until after five o’clock, when the nurse gave her another dose of one-eighth grain of morphine to allay her pain. Whether the effect of this latter dose had not so much benumbed her faculties by six o’clock, or shortly after, when the will now propounded was executed, that she was unable to fully appreciate the differences between it and the paper she had attempted to sign a short time before, is, I think, extremely doubtful. Yet it is essential to the validity of the will propounded by the defendant that he should establish that, at this time, the testatrix was capable of thus discriminating between the two wills and of understanding and approving the contents and effect of that to which she finally put her mark.
It is not satisfactorily proven that the formalities prescribed for the execution of a will in the English form were observed. The evidence of nurse Laporte, although in some parts uncertain, in the end seems clear enough that the three witnesses signed this will in the room of the testatrix and in her presence and that it was another will, to which the testatrix had previously put an illegible signature, which, although then believed to be of no value, was subsequently signed by the same witnesses in another room—a peculiar circumstance, if it be the fact, of which there is no real explanation in the evidence. The witness, Marie-Louise Craig, is most unsatisfactory; and the evidence of the third witness, Dorila Amyot Lessard, while by no means clear, rather goes to shew that it was the signatures to the document now propounded which were affixed by the witnesses in another room and out of the presence of the testatrix. On the whole evidence, perhaps the balance of probability is in favour of the due execution of the will propounded. But it is not satisfactorily proven.
It is upon the third question, however, that the chief difficulty arises. The suspicion created by the facts that the defendant is the sole and absolute beneficiary under this will, that it was he who gave the instructions for its preparation to his brother, Fernand Craig, who is a lawyer, and that he was present at and procured its execution is greatly increased by the following circumstances, deposed to by himself. The testatrix, when the defendant read this instrument to her on the morning of the 5th of July (possibly in the presence of nurse Laporte, as was found by the trial judge upon evidence which is very slender, to say the least), expressed a desire that he should do something for her family in conformity with a wish of, if not in fulfilment of a promise made by her to, her father from whom she had received her property. The trial judge finds that she then refused to sign the will as drawn. As pointed out by the learned Chief Justice of the Court of King’s Bench, there is no direct proof of such a refusal. The evidence, however, warrants the inference that the testatrix took exception to the will in the form in which it was read to her. In order to comply with the wish thus expressed by his wife, the defendant had his brother draft another will in which, after bequeathing her property to her husband, she recommends him not to give or bequeath it to any persons other than members of her family. This will was drawn about noon, but was not presented to the testatrix until after five o’clock in the afternoon, either because she was drowsy from the effect of the dose of morphine given to her about eleven o’clock, or because of the presence of visitors in her room, including her sister, the plaintiff, who remained from about eleven o’clock to five o’clock. The testatrix signed this will, apparently with much difficulty, and at the cost of considerable effort. It was subsequently attested, but, probably, not in her presence. This opinion is expressed by Archambeault C.J. in rendering the judgment of the Court of King’s Bench. The signature of the testatrix is said to have been illegible. The brother of the defendant, who had drawn the wills, was not present at the execution of either and was not called as a witness in this case. On seeing the defective signature, he expressed the opinion that it was worthless and that the will which bore it was invalid. The good faith of this professional opinion may be open to serious doubt. But I proceed on the assumption that fraud was not intended. On being told that her signature was insufficient, the testatrix, according to the testimony of the defendant, asked that the first writing of the morning should be brought to her. The defendant and the three witnesses say that he offered to read to her the document which he brought, but that she said it was unnecessary, that he had read it to her and that she knew its contents. She asked for a pen and her spectacles and signed it by making a cross. The witnesses then signed, probably in the room of the testatrix and in her presence. This took place about or shortly after six o’clock in the evening. The testatrix died on the morning of the 7th of July. The will now in question was admitted to probate in common form on the 3rd of August.
In his preliminary examination, although asked generally to tell the circumstances surrounding the preparation and execution of this will, which he propounds, the defendant made no allusion to the preparation or attempted execution of the other will. At the trial, during the early part of his evidence, occupying fourteen pages of the appeal case, he entirely suppressed the fact that another will had been drawn. He gives a manifestly false explanation of the delay in the execution of the will now propounded, which was read to the testatrix in the morning but not signed until the evening. It is only when pointedly asked whether there were two wills made that, after first pretending to be surprised and not to understand the question, (“je ne saisis pas la chose,”) when pressed he discloses the circumstances which led to the preparation of the second instrument and the facts concerning it. He was undoubtedly trying to conceal those facts. In a number of particulars—some important, some not—his evidence at the trial differs from the testimony which he gave on preliminary examination. He is not a frank or candid witness and his conduct in the litigation adds to the very grave suspicion which already surrounded this case.
The will to which the testatrix attempted to place her signature undoubtedly expressed with approximate accuracy her real testamentary wishes. It was only because she was told that the illegibility of her signature to that document rendered it worthless that she assented to signing another. The defendant sought to make it appear that it was the testatrix herself who asked that the document first prepared should be brought to her for signature. The other witnesses, Laporte, Marie-Louise Craig and Lessard, do not corroborate him on this point. His father, speaking of the time when the testatrix had endeavoured to sign the second instrument, says:—
Elle a essayé de le signer, elle a voulu faire des lettres et elle n’a pas eu la force de mettre sa signature comme il faut. Fernand était absent, il est arrivé sur ces entrefaites-là, immédiatement après, il a dit: “cela ne vaut rien, celui qui a été fait ce matin vaudra mieux; faites-lui donc signer celui-là;” ç’a été fait, ç’a été signé.
Moreover, although the witnesses agree that, when the defendant brought in the will now in question, he offered to read it to his wife and she declined to hear it read upon being told that it was the will which had been read to her in the morning, in the evidence of nurse Laporte we find this passage:—
Q. Qu’est-ce qui s’est passé, qu’est-ce qui s’est dit?
R. On a rapporté ce papier, vingt minutes, une demi-heure après, peut-être pas tout à fait autant, on est arrivé avec celui-là et elle a demandé si c’était bien le même; on lui a dit—"Oui, je te l’ai lu,” et elle a mis sa croix.
There is, no doubt, evidence from which an inference might be drawn that the testatrix knew that she was signing the document which had been read to her in the morning; but it is far from being absolutely clear that she was not confused or that she fully appreciated that it was not to a copy of the second will, which had been read to her shortly before and which she had attempted to sign, that she was asked to make her mark. The execution of this instrument took place about or shortly after six o’clock—nurse Laporte says about twenty minutes — Dorila Amyot Lessard, some few minutes—after she had endeavoured to sign the other document. She had an injection of one-eighth grain of morphine about five o’clock. Did she appreciate the difference between the two instruments when asked to make her mark to that now propounded because her attempted signature to the other was illegible? Did she, consciously and fully realizing what she was doing, abandon the wish she had expressed in the morning and the will giving effect to that wish, with which she had announced her satisfaction when it had been read to her some fifteen or twenty minutes before? Whether benumbed faculties afford the true explanation of her signing at six o’clock a will to which she had taken exception at noon, or whether she accepted the document presented to her because she was fatigued and tired of the whole affair and anxious to be done with it, as her repeated expression “dépêchez vous” would indicate, or, perhaps, feared that she might not continue in a fit state to make a will long enough to have another prepared more exactly in accord with her wishes, is by no means clear. Whatever the explanation, she put her mark to an instrument which did not fully express her wishes—not of her own initiative, but upon this document being presented to her for signature by her husband at the suggestion of his brother, Fernand Craig, who undoubtedly could have given evidence that would be very valuable upon material points in this case. He was not called. The defendant, on whom lay the burden of proof, must bear the consequences of failure to call him.
Whatever the true facts may be, no adequate reason is given for the testatrix relinquishing her desire to have her father’s wish carried out—and the evidence is by no means convincing that she did consciously and deliberately abandon her intention to give effect to that wish and decide of her own volition to make the will in which it is ignored.
The learned trial judge found against the will propounded on the ground that its execution was invalid because procured by a mistaken representation of law, viz., that the imperfection of the signature to the other will rendered it valueless. The court of appeal held that this mistake did not avoid the later will. Apparently proceeding on the footing that the burden of proof was on the plaintiff and that she had failed to prove the allegations of her declaration, the appellate court held that the will attacked contained the last wishes of the testatrix; that she was of sound mind at the time of its execution; and that this will was made in conformity with the formalities prescribed by law. The judgment of the Superior Court was reversed and the action dismissed. With great respect I think there was error in charging the plaintiff with the burden of proving that the formalities of execution were not observed and, more especially, that the will propounded by the defendant did not really express the last wishes of the testatrix. Probate in common form of this will having been granted, the plaintiff was, no doubt, obliged to begin. But, so soon as it appeared that the will had been procured by the defendant who was the sole beneficiary, the burden of proof shifted. Tyrell v. Painton[9]; Brown v. Fisher[10]; Fulton v. Andrew[11]; St. George’s Society of Montreal v. Nichols[12]; art. 858 C.C.
Something has been said of alleged intrinsic evidence afforded by the documents themselves that the will to which the testatrix finally affixed her mark was not the document read to her in the morning. But, as this aspect of the case does not appear to have been gone into at the trial, I pass no opinion and rest nothing upon it.
On the whole case, though not without some hesitation, due chiefly to the contrary view unanimously taken by the learned judges of the court of appeal, I have reached the conclusion that the burden which rested upon the defendant, particularly in regard to establishing that the will propounded expresses the true last testamentary wishes of the testatrix and that when executing it she knew and approved of its contents, has not been satisfactorily discharged. The principle of the decision in Harwood v. Baker[13], s: cited by counsel for the appellant, applies to this case. See also Tribe v. Tribe[14].
The appeal should be allowed with costs in this court and in the court of appeal, and the judgment of the Superior Court should be restored.
Brodeur J.—Il s’agit du testament de Madame Isaie Craig, née Flore Lamoureux, dont on conteste la validité.
Ce testament qui a été fait suivant la forme dérivée de la loi d’Angleterre, est daté à Montréal le 5 juillet, 1911. Il est signé d’une croix et porte l’attestation de trois personnes du sexe féminin, savoir, Madame Dorilla Amiot Lessard, une amie de la testatrice, Mlle. Marie-Louise Craig, une cousine du légataire universel, et Mlle. Anna-Maria Laporte, la garde-malade de la testatrice.
Par ce testament, elle lègue tous ses biens à sbn mari dans les termes suivants:—
Par mesure de prudence, et sans me croire nullement dangereusement malade, je prends à tout événement les présentes dispositions: Je donne et lègue, sans restriction, à mon époux, Isaie Craig, tous mes biens tant immeubles que meubles, sauf les cadeaux qu’il jugera à propos de faire à mes proches comme souvenirs. Et je déclare ne pouvoir signer.
ma
Dame Flore [X] Lamoureux.
marque
L’attestation des témoins se lit comme suit:—
Nous attestons que la signature ci-dessus faite “de sa marque” est celle de Dame Flore Lamoureux, épouse séparée de biens de Isaie Craig et nous signons comme témoins de suite après elle en sa présence et à sa réquisition et qu’elle reconnaît que le document produit est signé par elle de sa marque et est son testament.
Dorilla Amiot Lessard.
Marie Louise Craig.
Anna Maria Laporte.
Comme il a été produit dans la cause, au cours du procès, un autre testament dont j’aurai à parler plus loin, je désignerai celui dont je viens de donner le texte comme “le testament sous croix” ou le testament P. 1.
La testatrice est décédée le surlendemain, le 7 juillet, 1911.
Le légataire, qui est le défendeur et intimé en la présente cause, a, le 2 août, 1911, présenté au protonotaire une requête pour vérification de ce testament sous croix; et a produit au soutien de sa requête l’affidavit du témoin, Mlle. Marie-Louise Craig, sa cousine, qui a déclaré que:—
La croix apposée au bas du dit testament est celle de Dame Flore Lamoureux, qui n’a pas pu signer de sa main ses nom et prénom, vu son état de faiblesse;
La signature apposée au bas du dit testament Marie-Louise Craig est ma propre signature, et je l’ai apposée en présence et à la réquisition de la testatrice;
Les signatures “Dame Dorilla Amiot Lessard” et “Anna-Maria Laporte” sont celles de ces personnes qui ont signé devant moi en présence et à la réquisition de la testatrice.
Les héritiers de la défunte n’avaient pas été appelés à cette vérification qui s’est faite ex parte et le protonotaire a alors déclaré le testament dûment prouvé.
Le 21 août, 1911, la présente action a été instituée par la sœur de la testatrice, l’une de ses héritières, pour faire annuler ce testament en alléguant en substance que ce testament était le fruit de l’erreur et du dol, qu’il y avait eu suggestion et captation, qu’il ne représentait pas la volonté de la testatrice et que les formalités essentielles n’avaient pas été remplies.
Le défendeur a comparu par le ministère de l’avocat Craig, son frère, celui-là même qui avait rédigé les deux ou trois projets de testament en question à cette date du 5 juillet, 1911. Il y a eu cependant substitution de procureur et M. l’avocat Craig a cessé d’occuper comme avocat du défendeur.
La cour supérieure, présidée par l’honorable juge Bruneau, a annulé le testament P. 1, en disant qu’il avait été signé par erreur.
La cour d’appel a renversé le jugement de la cour supérieure et a maintenu le testament.
La demanderesse, par le présent appel, nous demande de considérer la validité du testament et de l’annuler.
Il s’agit surtout d’apprécier la preuve qui a été faite; car la différence d’opinion entre les deux cours inférieures résulte de leur interprétation des faits. Il y a cependant la question de Vonus probandi qui se présente aussi.
Le demandeur a examiné les trois témoins du testament et le défendeur. Je suis d’opinion que la preuve qu’il a faite est suffisante pour faire mettre de côté le testament.
A tout événement, cette preuve était suffisante pour faire disparaître la présomption qui résultait de la vérification en faveur du testament. L’onus probandi retombait sur le défendeur. Ce dernier aurait dû alors faire entendre son frère, l’avocat qui a rédigé ce testament et qui aurait pu éclairer la justice sur les incidents de cette journé du 5 juillet, 1911.
Avant de disséquer cette preuve, il convient que je rappelle brièvement des faits qui me paraissent admis par les deux parties et au sujet desquels la preuve offre une certitude assez parfaite.
M. et Mde. Craig, le légataire et la testatrice, étaient mariés depuis plusieurs années et n’avaient pas d’enfants. Ils étaient séparés de biens.
Le 5 décembre, 1904, le père de Madame Craig, Olivier Lamoureux, lui aurait fait donation d’une somme de $7,000. Il lui aurait fait promettre plus tard, et même jurer sur les évangiles, de donner le capital de ses biens aux membres de sa famille.
Madame Craig était d’une santé délicate, souffrant de gastrite depuis plusieurs années. Le 3 juillet, 1911, elle a été obligée de prendre le lit. Les médecins ont été mandés et son cas paraissant désespéré, une garde-malade fut appelée à son chevêt. Elle demeurait depuis longtemps chez son beau-père avec son mari et les deux frères de ce dernier. Parmi ces frères se trouvait l’avocat Fernand Craig.
Le 5 juillet au matin, on décida de faire venir le prêtre pour lui administrer les sacrements. Et alors le père Craig a demandé à son fils, le mari de la malade, si elle avait fait un testament. Sur réponse négative et sur le refus du mari d’aborder ce sujet avec sa femme, le père a attendu l’arrivée du prêtre; et, avant que ce dernier entrât dans la maison, il lui a dit de suggérer à la malade de faire un testament.
Le curé s’est chargé du message; et après son départ la mourante aurait demandé à la garde-malade de faire venir son mari à qui elle aurait exprimé le désir de faire son testament.,
Nous n’avons quant à ses instructions que le témoignage du mari, le légataire, car la garde-malade n’était pas restée dans la chambre. Au lieu de faire venir un notaire, il crut qu’il était préférable de faire rédiger le testament par l’avocat Fernand Craig, son frère, qui était alors dans la maison.
Ce dernier aurait évidemment préparé un testament par lequel le mari était institué légataire universel en jouissance et en propriété.
Ce projet de testament ainsi rédigé aurait été communiqué par le mari à sa femme. Nous ne savons ce qui s’est alors passé que par le témoignage du mari. Il est sur ce point aussi bien que sur bien d’autres, si peu satisfaisant, et même si contradictoire, que je ne puis pas l’accepter sans corroboration.
A tout événement, ce testament n’a pas été agréable à la femme et elle a dû alors lui rappeler la promesse ou le serment qu’elle avait fait à son père et elle a dû suggérer de faire un autre testament par lequel elle léguerait ses biens en jouissance à son mari et en nue propriété aux membres de sa famille, puisque l’avocat Fernand s’est mis à l’œuvre pour rédiger un nouveau testament par lequel, après avoir légué ses biens à son mari, elle ajoutait:—
Suivant des recommendations de mon défunt père je lui (à mon époux) recommande de même de ne donner ou léguer ces dits biens à nuls autres qu’aux membres de ma famille.
On ne sait pas pourquoi ce testament ne fut pas alors signé de suite. Sur ce point il y a deux versions également probables. La première, c’est que la malade s’est endormie ou qu’elle était trop faible et qu’on n’a pas voulu la déranger. La seconde, c’est que l’arrivée de la demanderesse, vers cette heure-là, a gêné le défendeur, qui n’a pas voulu qu’il fût question du testament en présence de la sœur de la testatrice.
Je dois dire ici que depuis une couple de jours on faisait prendre à la malade de la morphine pour apaiser ses douleurs qui, au témoignage de tout le monde, étaient des plus atroces. Les médecins experts qui ont été examinés sont d’opinion que ce traitement avait pour effet d’amoindrir ses facultés intellectuelles, que son cerveau ne pouvait pas être aussi clair et aussi lucide et que la morphine diminuait la force de sa volonté.
Dans le cours de l’après-midi, après le départ de la sœur, le défendeur s’est mis en frais de faire signer ce second testament. Il l’aurait lu en présence des trois témoins, Madame Lessard, Mlle. Craig et Mlle. Laporte. La testatrice aurait alors demandé ses lunettes et aurait griffonné sa signature.
Le juge instructeur déclare que les témoins auraient de suite, en sa présence, signé l’attestation.
A l’arrivée à la maison de l’avocat Fernand Craig, il prit connaissance de la signature de Mde. Craig et, ayant trouvé qu’elle était illisible, il aurait alors dit en présence de son père qui nous le rapporte:—
Cela ne vaut rien; celui qui a été fait ce matin, vaudra mieux, faites lui donc signer celui-là.
Et alors le mari serait revenu dans la chambre avec un autre projet de testament. On ne le lui aurait pas lu. Elle aurait fait sa marque d’une croix. Ce testament est celui qui est en litige et qui, comme je l’ai dit plus haut, a été annulé par la cour supérieure, mais maintenu par la cour d’appel.
Comme le testament portant la signature plus ou moins lisible de la testatrice devra être mentionné assez souvent au cours de ce jugement, je vais le désigner comme le testament de jouissance, ou le testament P. 2. Nous sommes en présence de deux testaments bien différents. Dans l’un elle donne tous ses biens à son m