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O 'SULLIVAN , M.A., LL.H., OF OSGOUDE HAM.. HAKKISTEK-ATIAW, AUTIIOK OI I'KACTK Al. CONVIiV- ANCiNCi, INCLUUINO WILl-S , (.OVtK.NMENT IN (ANADA ; ETC. /33 A c.ii i.iiii J:ti iiilyiT ill .111 i;vil hour made aKrcal fortune and uindo ;i ureal Will." I )i< kkns " I•o•;^is i^n.iMis li.iln'ii Kt suliili (MMis iiii|>i<)vi I) A O'Sixlivak. in Ihc Office- ol flu. Miiiisl.r of A^iculturc- IKISTKIl IIV MOORI \ Co., I.AW 1'|, *> AI)Kt.AII)t: ST., KANT. TORONTO. TO rm: ki-adicr. Ii^VI'JlY person slioiil I know sonictliiii^ nhoiit tli(> liiw ^ rt .s|)i (tin^ Wills, iiiii if possil.lc rflioulil know liow a siinpli' Will ou;^lit to 1)( ilrawn up. T\u' first titin;; to lonrn is that it is a ilitVicult tliin;^ to draw till' simplest Will. a:ii;,'ns" <»r **^'ive, i^rant, convey, assign, n lease, enfeotT aad continn." This is the unknown jar^^on of the Law. lUit it is not in reference to the wordin*^ of a Will that ditliciiltiis chietly arise — it is in respect t«> tiie surroundin}^ circumstances ; a disre;.,'ard of which has en^^endert-d most liti^^ution. An unprofessional man lays j^reat stress ()n the proi)er si<;nalure of the testator a..v; the attestation of the witnesses — forj^ittinj^ often that thouj;h essential of course they are not the whole thin^,' necessary. In th( se paj^es the mere lan^uaj^'e of the Will is not to he- the suhject of "greatest con>ideratu)n ; what will In insisted upon is the condition of the testator, liis surroundinj^s anecial inten-st to th( in have heen enlar^td iijvm. .\s full referenco as convenient has i»ctii made to the Mortmain Acts and to gifts to charities, churches and other kindrei«-;ent instructions to enahle .■•ny one to draw up a short Will: and indeeil as to this, his own views have heen streuj^tlnnefl hy the opinion of one of the leaders of the Toronto I Jar. The Lon«ent law comparctl —Written Will for .ill proprrly — No Will by minors Will s|M'.iks fri>in dcith of testator Mar- ricil Women can make Wills So can Aliens WiIi>lss«'» • --Hcvocation — No public Wills — Definitions -I'restimji ions .. 14 CHAITEU III. Wiln MAY MAKL A WILL. Mritish subjects - Aliens ilonuciled or residents l.erc -ICxcepiions — Persons incapacitated by crime, by want of discretion, or want «>f free will .-i CHArTKII IV. WHO AHH INCAPAHLK <)I MAKINd A WILL. Incapacity by reason of crime— Non-ase -Old hrc -Orunkenness — I'nsoundni ss of mind— Deaf ant aside All intlu- ences arc not unlawful What may be s.ifdy done -Inlluence must not amouut to control -Wills obtained by fear, force, or fraud, are void ;^o VI. TAIII.K ()!• CONTKNTH. CHAITKIJ VI. I'AOK. WHAT I'KOI'KKTY CAN UK I)KVISi:|) OK MKnl'KATIIKIi. Wlialovrr llic Ttslator liied jxistMtssi-d of ainl which would y\o to hull s or n(!xl of kin CoiitinKont iiiti'icsls Ki^lits of i;nlry I.aiul outside of Ontario must Imj dcvisod accordinn to lex loci rci tHir — Chattels follow the lix ilomu ilii j.f CllAl'Ti:i{ VII. WHAT niiOlIKSTS AND DKVISKS CVN WE MADI.. ("lifts to cverylnxly except to witness of \V;il— Or husband or wiftr of wilm-ss Alit-ns Coriviratioiis - ('harilics Muriniain Acts Masses Ni-t for illt-jjal or itnnioral pin |ii>scs May In: conditional Hcstrnints on land, and on chattels id CFIAPTKH VIII. now TO DUAW A SIMI'I.K WILL. Law about jiajxirs, pen. and ink DaK; llxetutors — l)is|x)sitions — Witnesses— Description of property — Debts -Widow s sliare - lln.sband s share Wdi of married woman -I'mvisions to con- tinue htuseholil Avoid technical terms— Attestation dause — Signing of all parties— Alterations -Erasures ^i CHAPTER IX. MATTKKS SUJlSI-.gCKNT TO TMK DKAWINC Ol" A WILL Revocation by subsequent Will— Hy codicil -by ilcstroying tlic Will Ultimo rct'«ivi«; others, may be consiilteii :-- An' iKST l«A\v. —Mitith-. (iihliDii. atnl the text of Juitininii's Itistitutii. I'MKi.v I'lNiii.isii f-A\v AND Wills. -Coolt. /<<< J Ti, iS'iihulds, ami the pul)lii:ntions of the Surti'cs Siniily. Mkdicai. Ji;RisrHi:i>i:N< k. —/J/fi'i //, Tnylnr. limun, liiik. Insanity, etc. -Huinminul, Vritchitrd. MundiLy, liustiiin. International Law. Wluaton, Wcstlakf, Authorilifs for the or;linary Itjual part of these pages aro to l>e found in hundteils of reported cases, ^nd in the text writers on Wills, and are col- lected in the W riter's Mitniiul of Convey tuuint;. now TO DRAW A SlMI'l.i; WILL. CIIAl'TKK I. V TIIK LAW. "Old F«ther Aniick, ilic Law "—Falsi*) r, C/ <,;;»•« ill th" hiir ontu irilh — 'I'.'if Uoihhh lti:r I'lihlic irilla — Mnrlrni milfH — />laiius fu mil liis army on the eve of a battle de- clariiif,' their Wills to eacii other. THK LAW. 11 I In Euglaml tin- incorporation of the Ftudal system pre- vcnteil^^t'nt'i'alalifnationbyWill.tliouglj the Saxons in earHer, and tlie Tudors in hittr times, permitted certain devises. Since the Conquest only a term of years in hind coidd he devised ; Init by a sulitlety called rsea the restraints were evaded. Afterwards, in tlie reign of Henry VIIL, permis- sion was given to devise lands to any person (except a body corporate); and later, in the reign of Charles II., these devises were required to he in writing and signed by three credible witnesses. Personal property could always be bequeathed by Will or testament. The great break, therefore, in tne history of English law as to Wills reduces it roughly to a consideration of these statutes and the subsequent legislation. By an important act in the reign of Queen Elizabeth cer- tain gifts of money could be nuide to charities ; but as regards a gift of land to either corporations or charities, the restraint lasted until the ninth year of the reign of George 11. , when the statutes connuonly called the Statutes of Mortmain, were passed.* Under this statute of Geo. II., which is law here, devises of land could be male to a corpo- rate body if it had a license to hold in mortmain ; but if not so empowei'ed the devise was void. In 179'2 the whole Connnon and Statute law of England- as far as it atiVcted property and civil rights, was transfer- red to the old province of rp})er Canada, and under this transfer such parts of the law of England relating to W ills and to the ])ractice of administering estates as eould pro- perly apply tc the altered state of things in a colony came to be in force here. In ls7:5 the law regarding Wills was amended au'l consolidated, and is now to lie found in the * A great miinher of statutes btsinnint; in tlie reit;!) of IKnry III. lire to be fuiiiul in the books on tlie s iiiic iLStrictions, and arc calleci Mortmain Statutes. 12 HOW TO DRAW A 8I!kIPLE WILL. Bevised Statutes of Ontario, chap. 100. The law, thecouvts, and the property, are entirely under the control of the Provincial Legislature. Concurrently with this glance at the early history of mat- ters testamentary, a brief sketch of the manner in which they were conducted in modern and medijeval times may not be uninteresting. The frequent mention of Ecclesiastical Courts in matters relating to Wills umy raise a query as to the relation between them, and we will detain the reader a moment to assist in its explanation. Before Christianity had taken a hold on the lioman Empire we are told that the Church had become a governing power, and inflicted private penance and public admonition not only jn-o sahite aiiimfn, but for the reformation of offenders. By the Codex Theodosianus the Bishops were pronounced to be the proper judges in all cases " qiioties dc reVujrone apititr ; " and numerous concessions were afterwards grant- ed to the Church by the civil authorities. Accordingly mat- ters connected with marriage, dower, alimony, the validity and invalidity of Wills, the enforcement of legacies, and the administration of a deceased person's property, came under the ecclesiastical laws of the Church. While this prevailed largely on the Continent the Anglo- Saxons recognized no separate jurisdiction in the Church, but ever since the introduction of Christianity into England the Bishops sat to hear cases in the (bounty Courts with the eaUlorman or his sheriff, and introduced the principles of Roman jurisprudence as modified by the Canon Law into their decisions. £ THE LAW. 18 William the Conqueror, in on important statute, erected separate courts to be held by the Bishops in their own Sees in the Cathedral Church. Over these Bishops presided the Archbishop of Cantdrbury in the Court of Arches.* These Ecclesiastical Courts continued down into recent times. They adopted the practice of the Boman Consistory ; and admittedly infused a higher tone into the general judi- cature of the countr}*. They took cognizance of cases not reached b}' the Common Law Courts, and in early times the Bishops presided over the Court which owes its origin to them — the Court of Chancery. One of the chief duties of these Courts was in relation to Wills of personal property, the exclusive control of which was conceded to them under Magna Charta. Afterwards when the statute of Henry VIII. gave the power of dis])osing lands by Will and in the intervening period when the fiction of uses was availed of, the additional work fell to the Eccle- siastical Courts and the Court of Chancery. The manner and history of this could not be intelligently treated in our limited space: suftice to say that in England the Bishops ceased to sit in the Courts of Law or Chancery and that the Ecclesiastical Courts themselves tinally merged through some minor devolutions into the Probate Division of the High Court of Justice. In this Province there is a Surrogate Court established for each County over which the County Judge presides, and it is to this Court in the first instance that all uuttters tes- tamentary ordinarily come : the jurisdiction of the late Court of Chancery now d: uibuted equally to the three Divisions of our High Court of Justice existing concurrently in some matters and exclusively in others with the Surrogate Court. * So called from the church SiDicta Mar'ui dc Arcubits, m reference to the position of the place in London. CHAPTER II, THE LAW OF WILLS IN THIS PUOVIXC'E. The old awl prcnent Inic comjnin'il — Writfrn mil /or all pro- pertif — no Will Inf minors — Will sjiC'ilcs Jhnn dcittli of ti'ntK- tor — Married n-niuen can make ll'ill'i — fio ran aliens — Wit- nesses — revocation — no pnhlic or prirate ll'i'ls — definitions — presumptions. As was saitl in the last chapter tlie statute law of Wills is now to be found consolidated in the Beviscd Statutes of On- tario. Thouj^h not containing all that is necessary to be known it is very full in its provisions, and especially par- ticular as to the power and means of disposition by Will, the mode of attestation and signature by the testator, etc. Many of the old distinctions as to Wills or testaments, land or chattels, minors and adults, written and unwritten dispositions, witnesses credible and otherwise, have passed away and arc of little importance under the present law. There is no difference now between a Will of real proi)erty — that is land —and a Will of personal property — that is pro- perty otlur than land, such as money, chattels, stock, etc. Formerly it was usual to speak of a 117// of lands and a Testa- ment of chattels, but that distinction no longer prevails. A THK LAW OF WILI,S IN THIS PROVINCE. 15 AVill or a Will and testament, now mean the same tliin<,'. The same formalities are required with one kind of property as with another ; and the words "all my proijcrty" in a Will pass all the interest of the owner whether in real or per- sonal pr()})erty. Every Will nuist be in writinrr and nnist be sij^ned by the party making it in the presence of two witnesses. The old law as to Wills of soldiers or sailors in active service still obtains. These Wills are called Xiinnijxitire Wills — they need not be in writing — it is sufficient if the person declare his Will in the presence of three witnesses. Every person of the full age of 21 years can make a Will if not rendered incapal)le in law. The incapacities will be referred to hereafter. Formerly a male infant of 14 years and a female of 12 could make a Will of personal property. This is not any longer the law. The Will under the present law speaks from the death of the testator and includes after aee a witness and so can a creditor. In the old law also the birth of a cbdd after Will made, or certain changes in the testator's circumstances revoke I the W^ill. This is not the case now. Marriage is the onlv circumstance of that kind that revokes a Will. A general devise in land now passes the largest int' est in it the testator had, unless the contrary appear. There is no provision in our law as to pithlic Wills — that is Wills made before a court or public otlicer ; and a holo- graph AVill would be worthless. A man can disinherit all his children without giving them or any of them even a shilling. The principle of the " inothcious Will" oft!;;? Romans — where the claims of kindred were disregarded — is unknown in our law. A man can take nothing from his creditors, nor can he dejuuve his wife of dower if she be entitled to it. These are the main features of the law in this Province, to which a more particular reference will be made in tl.e succeeding pages. It is thought advisable here to give some explanation of a few legal terms, and add some leading presumptions respecting Wills. THF LAW OF WILLS IS THIS I'KOVIXCE. 17 EXPLANATION OF LEGAL TERMS. Attistdtion is where the witness to a Will or otht-r writing sif^ns his name at the time as witness. Where witui'ssing only is required the name may or may not he signed at the time. Attesting includes witnessing, hut witnessing does not necessarily include attesting. Bequest is properly a gift of money, or other chattel pro- perty in a Will. Codicil — Addition to a Will made after the Will is executed, and intending to affect some of its provisions. Committee (in lunacy). — A person or persons appointed hy the Court to take charge of the person or property (or hoth) of a lunatic. Devise is properly a gift of land in a Will. Executor. — The person named in the Will who is to repre- sent the deceased as to his chattel property- — pays his dehts and collects in estate, etc. Guardians. — Persons who have the legal representation of minors or infants. They rei)resent their wards during the lifetime and minority of the wards, much the same as executors and administrators do deceased persons. Intestacy takes place where any person dies witliout having made a Will, or a Will of all his property. The distril)ution of his estate takes place then accord- ing to law — the real estate under the law of descent, as set out iu the Revised Statutes of Ontario, chap. 105— the personal estate according 18 now TO OKAW A SIMPLE WILL. to the Stntutes of Distributions passed in the rei^'n of the Stuarts as ntoditied hv our statutts. The land not-s to the children in equal shares after the share of the wife or hu.^hand is dt-duited. The next of kin is usually ap[>oint(-4l administra- tor of the i)ersonal estate — the children in point of a<,'<' and htness, (males before females) comin*^ next after tht; survivin;^ parent. The a^lministra- tor is always api)<>inted l»y th*.- Suirogatt- Court, and has the powers and duties of an ordinary executor. The widow takes one-third of the per- sonal property, and the children the other two- thirds in ecjual shares. If there are no children the widow takes one- half the personal estate, and the next of kin of the husband the other half. Where a child is dead, leaving lawful issue, they take the parents' share. If no children or wife then the father takes, and then the father's family : and if none of these to take then the <,'randfather's family is considered, and so on back. The nearest family is the next of kin, who divide up with the widow in tlfe event of no children of the iktsou in question. The same rule applies as to propert}' of the wife when she dies intestate, L'^'jary. — A gift of chattels, specific articles, or money. Lrtters of Administration. — Where one dies without making a Will the Surrogate Court gi'anta these letters to the next of kin. The administrator represents the deceased in much the same wav as the executor. THK LAW OF WILLS IN THIS PROVINCE. 19 Luuntir (in Inw) — A person whoso unsoundness of mind is such, that in the o[)inion of the Court he or she cannot take care of his or her own jx-rBon or prop- erty. No person, thou^'h confined in the asvhnn ns an undouhted maniac, can l)ede( hired a hnialio in law till the Court passes an opinion on the case. Minnrst. — Persons under the a<^e of twenty-one 3'cars, of either sex. Probate. — A copy of a Will proved before the Surrogate Court. • . Ti'stfitnr. — Properly, a man who in his lifetime disposed of his property hy Will. In the following paries the word "testator" will he applied to mean a person about to draw his Will. PRESUMPTIONS IN LAW AS TO WILLS. That the testator meant to dispose rf all his property and that he had sufficient fov the purposes of his Will. That he intended the tec.inical words of law used in the Will to be understood in their lechnical legal seLse. That any gift of a)i estate in lands is to be the fee simple (if he has such nu estate), unless he expressly restricts it or lias n less estate. That his Will is to take cfTect on his death as to such property as he may then have. That all alterations, etc., were made after the execution of the Will. 20 now TO DUAW A SIMI'LK WII.I,. Tlmt if his sif^'naturo bo proved, ho knew and approved of the contents ; if the Will wa8 read over, that is conchisive as to its contents. That several sheets found as a Will constitute the whole Will. That if he might see the witnesses sign, then he did see them. That if the Will he not found after his death, it is destroyed auinto cancellandi. That the Will was made on the day of its date. The Will must be construed as a whole. The last Will governs. CHAnp.K III, WHO MAY MAKE A WILL. "The ciiritr ranio out ami told llicm that ihf yood Alon/o (Jiiixano was vrry near his piul anil rcrialiil)' in his senses; anil thureluru that they hail best ^o in so that he nii»;hl make his will."— CiiKVANH;s. Evcnjhothi cdii mttke n 11*7/ uhU'hh iucapfiritntcd hy crime, irttnt of (JiHcretio)! or icdnt of frcr irill. — Cupaciitj to mtihc : i\'. PKUSONS WHO CANNOT MAKl'! A WILL. Tnce dilHcnlt to conceive of a Hound mind unless the memory and understanding were included, even if they were not expressly super-added. The mens disj'oncndi need not be a well balanced mind, or even such a vigorous mind as the testator once had, but it will be sufficient if it be equal to the thing on hand — the right understanding of the testator's property, and the angle of relationship in which he stands toward his friends and '' relatives. Xow, it is apparent that there may be a partial insanity, not sutlicient to deprive the testator of this know- ledge even although he be insane on other points ; and so it happens frequently that the Will of a lunatic may be upheld. If it could be shewn that delusions influenced his "Will, then it could not stand ; but it rarely happens except in the violence of acute mania, that a man is deluded as to every subject. Medical opinions, however, differ on these as they do on most points. Many distinguished medical men are of opinion that where the mind is diseased every act done while the mind is in that state is an insane act. Dr. Oilman, in the Huntington case, said : " I pronounce Huntington insane. T make no distinction. There is a state of things called monomania, but I pall him insane. According to Lord Brougham the mind is a totalltijr Dr. Willard Parker in the same case disagreed with this doctrine so far as "partial" insanity is concerned. In the year 1800, the question of partial insanity as opposed to the former theory of the mind being a unit came up in England in the celebrated Hadlield case. Hadlield was a soldier, had been wounded, became insane, and imagined that he was a Saviour and had a special mission. His mission was to kill George III., and for that purpose 28 HOW TO DRAW A SIMPLE WILL. he procured a pistol and other necessaries, with cool deliberation waited an hour in the Drury Lane Theatre, and tired at the monarch on his entrance to the Royal box. The great Erskine advanced successfully this new doc- trine, and in the most beautiful language described this to be one of those difficult cases " in which reason is not wholly driven from her seat, but distraction sits down upon it along with her, holding her trembling upon it, and frightens her from her propriety." It was held that Hadfield was insane upon one point, though there was no doubt of his being sane on everything except his mission and its execution. The English medical authority is also divided, and this opinion of Lord Broughan has been questioned.* The courts cannot be said to have adopted this view, and the test used appears to have been, to quote the language of a writer on the subject, not whether the testator was sane or insane, but whether he had capacity to make the Will in question or was incapable of making it. It has been all along held that in the lucid intervah of insanity a man can make a valid Will, and Wills both here and in England have been upheld where the testator was at the time confined in a mad-house. An insane man, like a drunken man, may be capable in law, therefore, of making a Will, provided that his insanity can l)e shown not to have affected the dispositions in such Will. Many will suppose that this reads like a contradiction. It is clear that a diversity of opinion will always prevail among the medical profession in that respect, and not a few will always maintain, in opposition to the Courts and some of * A writer in the current number of the Popular Science Monthly adopts the view of partial insanity. See chapter on medico-legal matters in the appendix poit. PERSONS WHO CANNOT MAKE A WILL. m their own brethren, tliat every act of an insane person is an insane act. Closely allied to insanity is eccentricity in Wills, Eccentricity of itself is nothing. Where a testator's mnid is at all atfected. the fact of any eccentric disposition makes the Will suspicious. There have been .some ex- traordinary Wills made, but where there was no question of mental incapacity the Courts have not interfered. One man made seventy-one codicils to his Will, many of them of the most impossilde character, and in his Will made a provision for the support of a professor at the Atheuieum m Pans, to lecture on the colors and patterns of dresses He further directed that his bowels were to be made into tiddlestrings, and other parts of his body into sraellina salts. The Will was upheld, the Court remarking that the testator was a vain man, but not insane. A Will of a lady who devoted herself to pet animals, especially pij^^eons and kept them and a multitude of cats in her drawing-room was set aside on the ground that her eccentric tastis had taken possession of her to the exclusion of evervthin- else. ' ^"^"o What is known as moral insnnifi/— that is eccentricitv of habits or perversion of feeling and conduct-does not incapacitate a man from making a Will. Deaf and Dumb Persons.-\ deaf mute can make a Will and of course a blind person can do so also ; but a man deaf, blind and dumb from his birth is an idiot, and is mcapacitated from making a Will. CHAPTER V. INDUE INFLt'ENCE. '• No man is so foolish but may tive another good coimsel sometimes : and no man is so wise but may easily err it he will take no other counsel but his own. " — Ukn. Jonson. Reasons nhy this and prior chapters precede instructions as to Will — ir/u'/Y' testator nndnhi iutiionced. Will set aside — All injlnoices are not unlau-nd — What may he safely done — Intlaence must not amount to control Will — ■ ]Vills obtained by fear, force or fraud are void. h-' The reader ma}' think he is kept a long time from what he is expected to learn in these pages, viz., how to draw a simple Will, but he may take the writer's word for it that the smallest part about most contested Will cases is whether it is executed in the proper way, or whether there is any- thing wrong about the wording or language of it. When we get to that chapter he will be pleased to see how much will be left to his own ability to use the language, and how little need be said as to the mere writing necessary to con- stitute a simple Will. The object here is not to advise any one to attemi)t draw- ing a Will in as good or better form than a lawyer could do rSDUE IXFLUENCE. 81 it, but to bring out all the difficulties that none l)ut a lawyer sees to exist from the outset in the drawing of the most ordinary Will ; and to make the reader give an intelligent and blaiuek'ss account of himself when the Will he is about to draw is transferred into Court, and some successor of Erskine or liomilly is confounding him with a review of his conduct. A Will that is l>ad on the face of it never, or rarely, comes into Court at all : and so nearly all the litiga- tion arising out of Wills is engendered by the ditliculties referred to in this and the preceding chapters. No one need write such as is aimed at here if it were only the mere formalities that ought to be considered. These can be got at a law-stationer's with iiT^tructions on the back ready for immediate and general use. The matters to be referred to under this chapter need not detain us long. Wills obtained bv influence such as the law considers undue, and Wills obtained by fear, force, or fraud, are all void and of no effect. It is clear that in each of these cases, except in some cases of fraud, the person proposing to make his Will is n(»t allowed to act according to his wishes. It is rather the Will of another person than that of him who has been unduly influenced or overawed. As regards undue influence there is no doubt but all the professional advisers of a dying person can potently exercise it. They are present at the time most suitable to make an appeal to him, whether the influence regards his health, his property, or his life in the hereafter. In many countries, therefore, a legacy left by a dying man to medical, legal, or spiritual adviser, was regarded as presumptively bad. No such presumption applies in the English law or here, but it is needless to say that where the relatives have a right to complain such legacies are viewed with extreme suspicion, and unless it clearly appears that the recii)ien!, is blameless the gift will be set aside. The most common now TO I>U\\V A SIMI'LK WILL. difficulty of the legatee is to throw on him the onus of showing the gift to be good, ami that it ought to staml. However where a person living in the home of his pro- fessional adviser made a Will in his fav: \ii, WHAT hi:(,)ri:sTs and dkvisms can lii-: madk "Till' 1,1(1 i-, 1 w,i^ niiiiiMl by h.iviiij money lell me," said the c ilihlir— Uu kkns. ■ ^' Gi/tn ft) cvi'ijihodji c.vcrjit to iritiitss of Hill, or }ninUniiil, nv a iff of iritin'iiti — Aliiiis — CorftoiiitiouH — ('linriticH —Molt- jiioiii Acts — MdnHiii — Xot tor iliri/itl or inimornl piirpoHi-a — May he conditional — JicstraintH on land and on chattcla. Every person — British sul»ject or foreigiitr — except the witness to the Will in cjuestion, or the liushand or wife of such witness, can receive any devise, bequest or le<^'acy.* The disabilities that affect })arties in the making of a ^\'ill do not apply to their capacity to take a benelit under the Will of another. So an infant (even oi centre sa imVe), or person of unsound mind is capable and will be deemed to have accepted the provision, u.dess it be of an .injurious character. In these cases, the g ardian or committee of the person could act in the matter. A debtor is not dis- abled from taking a gift, but bis creditors could attach it in the hands of the .3xocutors. It had better be made to his wife, or in trust for him, in such a way that they could not reach it. They can always reach chattel property however. • It is usual and correct to speak of a devise of land, and a bequest of chattel projierty, such as money, stock, plate, etc. The distinction is sometimes lost sight of and is not ordinarily important. WHAT HKC^I'K.vrs .\NM> DKVISKM CAN UK MAPI'. H7 A wife is (.•ii[)!il»l(' of ttikiti;^ 11 t^ift. hut it iiiny l>o dt-sinihlo to liavf it niaile frco from the (h-hts iiinl control of her liushimd. All iilicii can take in the same wav as a Ihitish siilijrct; hut a h'^^iicy to an alien enemy may be forfeited to the Crown. Land cannot l)o devised to a charity or cfU'poration un- less it is empowered to take lands by Will ; nor can "Jfifts of money for tlu! jmrchase of bind be made to corporate bodies who are not so licouHod.* Charity in law docs not necessarily moan the relief of the poor — it means a j^ift for a public puri)oso, local or g(!neral. Bequests of money or other personal estati^ (pure per- sonalty) can be made to any charitable body, whether incorporated or not. The ])e(iuests for any charitable purpose are {^'ood, if the person'^ nd objects are sutllciently defined. Tiio law favours su(di ^'ifts, and will do its best to carry (;haritable intentions into et^'ect. Institutions of a relif^'ious ov educational, as wvW as of a jiurely eleemosynary character, are included under the term charity. The j^ift must be definite as to its object, and definite also as to the parties, so that some particular charity is pointed out. A man may leave money to the House of Industry, or House of Providence, or to the St. Vincent of Paul Society in , and his intentions will be carried out ; or ho can leave money for the " ^ood " of a place ; for the poor of a [)arish ; for the benefit of ministers of any denomination of Chris- * In let^ard to land, it may he mentioned that a Will of it cannot be turned into charitable purposi;.s by devisiiii,' it to trustees to sell and con- vert the same into money, and pay mer the money to a charily. And if there is a secret trust that the holder will use it for the purposes of a corporation, in evasion of the Mortmain laws, the Courts will set the Will aside. A gift to build a charitable institution is bad, and so is the gift to a charity of money secured on mortgage. H r^ii ii\":. m ',■ t 38 HOW TO DRAW A SIMPLE WILL. tians, and there is no distinction as to religion unless it be subversive of all religion or all morality ; for any public or general benefit of a place ; for the benefit, advancemeut and propagation of education and learning in every part of the world ; for schools of learning, free schools, and scholars in universities ; for institutions for the cure of diseases ; for the education and preferment of orphans ; for the repair of churches, etc. ; and for many other like objects. On the other hand it seems that for objects of benevolence or liberality, as distinguished from charity, the gift would not be good. And a bequest in private charit}', or to one's poor relations, may be bad. A bequest to a person in religious orders, as a nun, is good, she not being civilly dead under our laws. A sum of money can be left in order that mao' os may be said for the soul of the deceased. In this Province, the English doctrine of what has been called superstitious uses has not been followed. A superstitious use has been defined one that has for its object the propagation of the rites of a religion not tolerated by law.* Before the Toleration Act, in England, not only Roman Catholics and Jews but also Protestant Dissenters felt the effects of this doctrine ; and so, when Mr. Baxter, who wrote "The Call to the Uncon- verted," had 4'GOO left him to distribute among sixty ejected ministers, the learned Judge held it to be void, and thought • E .; lests to maintain the burning of lights before altars are very com- mon in jKI Wills. In 1318 a yearly rent was given to maintain " one taper of three pounds' weight " to burn before a particular altar in St. Paul's Cathedral, London. Books, which had in them the canonical hours, were sometimes left by Will to be fastened to a desk, or reading stand, nigh some altar, that those who wished might say or sing their Matins and Evensong out of them. The Earl of Arundel and the Earl of Warwick each directs in his Wills that Chapels be built and Shrines be enriched out of his estate. The giving of jewels and precious ornaments to decorate statues in Churches is very common also in early English \V'ills. These and such like bequests came to be considered as " superstitious " in the time of Henry Vlll., and the word has been since retained in law. WHAT BEQUESTS AND DEVISES CAN BE MADE. 39 I it had better go to support a chaplain at th • Chelsea Hospital There is no statute here or in Faigland making such uses void, and in these cases the gifts were held invalid in England on the plea of public polic}-. It is probable those old cases would not now be followed anywhere. Every form of Christianity is on the same footing. A gift to the Jews, as such, has been upheld. No doubt, any bequest aimed at the destruction or overthrow of any Christian sect, or of Christianity in general, would be con- trary to public policy. A gift cannot be made for an illegal or an immoral pur- pose, or for a purpose contrary to the public policy of the law. Gifts can l)e made with prohibitory or restrictive clauses, or with conditions attached. If the gift be otherwise un- objectionable, the clau'^es or conditions may be allowed to stand or may be struck out by the Court. A man may leave his farm to his son, and restrict him from selling it during his natural life except to any of his children ; or that he must not sell it without the consent of his mother during her life ; but a clause restraining a sale generally is no good ; nor one requiring him to sell to one particular man only within a limited time : or that he must live at some specified place. The wife or husband can impose on the other a con^lition not to marry again, and by breaking this the legacy would be forfeited ; and either may prescril)e the other against any particular person, or object to specified religions, nationality or age ; or limit as to profession or income. A condition not to marry without the guardian's consent is ( h ' ' ii' i^ 5 * 40 HOM' TO DRAW A SIMPLE WILL. valid, and often reasonable and proper. A condition in restraint of marriage generally is void, though not so as against a particular person. A condition that the property should not be sold out of the family till the third generation is bad. These restraints and conditions apply to land. Chattel property, when it comes into possession, is untrammelled by restrictions, except in so far as the creditors can reach it. It is a good bequest to say, that if the money or goods given to A. be not disposed of by him in his life-time, they are to . go to B. ; and A. may be prevented selling chattel property before it falls into his possession. 15, CHAPTER VIII. HOW TO DRAW A SIMPLE WILL. " Be curst and brief."-StR Tony Belch. It over and over upon all words whic i 1 i-id n r.^, "r "^ ''f'?" ""^ circumstance, rinKinrf transferred, n.ade over, dispo e, of ' vL" ed w ^ d.^Jir^f '' '" ""-' ■"'^••"•^•'K-conveyedl -what tnlness and richness, what\.itant;"a,:rcenai;\t u'Svel^Sf/e Tc\.-"'''°"^^^ lie act. 13av.^rd Tavlor. Lan ahout paper, pen and ink-Date-E^eeutors-Disposi. Uons- lUtnesses- Description of property - Dehts- n y/o.- . share~Hnshan.rs share -Will of married woman --irormons to rontiune hoHsohold-rcchnieal terms- Attestatnm clause-Signinrj of all parties-Alterations- J^rasarcs. There is no statutory form for Wills, and any intelligent sposal of a man s property intending to take effect at his ( eath, will be suftcient, if properly executed by bim If IS terms are testamentary, it maybe in the form "of a not;!;' ;''''^' ' ""!'' "■'^"■' '"•"^^' '^^'^'^' 'Settlement, a powei of attorney, or the draft instructions for a Will or may be made up of several distinct papers. It need contiun neither date nor name of the place where it was drawn up -rt niay be written or printe,l-or partly both-may be in ncd en- mk, m Latin. French, or any other language, or in the language ot signs ; and may be written on any 42 HOW TO DRAW A SIMPLE WILL. W: ^.:1 ■\f. material — paper, vellum or parchment. One man was known to use the wall of his room, and another useil his bedpost — both inconvenient in proving the Will afterwards. It will be safer, however, to keep to ordinary paper, using the same ink throughout, and the same handwriting, not using pencil and ink in the one Will, keeping the sheets of paper connected, or having the number of them referred to at the end of the Will. It is best also to use the language employed by the testator ordinarily, if he does not know the English language sufficiently well ; and lastly to adhere to the usual form of Wills as ordinarily drawn. These contain the name of the place — the date — a statement that the instrument is a Will, and the last Will, if that be the intention — the appointment of executors, guardians, or trustees, if they be necessar}' — a disposal of all the property — an attestation clause shewing that the Will was signed in the presence of two witnesses, all three present and signing at the same time, and before the man died. This attestation clause is especially useful, as the Probate Court in its absence will require much stricter proof as to the statutory formalities being complied with. The testator should be questioned as to his wife, children, or other relatives in their absence, and the names of the beneficiaries taken down ; then a description of his property, his money, chattels, where deposited, and the situation of his land — though the street or township will be sufficient, if he has only one property in either. The number of the lot, much less the metes and bounds, are not absolutely necessary ; any description will be sufficient, so that it could be pointed out without doubt in tlie ma]), or identified by the neighbours. But in every case it is desirable to get as accurate a description as possible. Then set opposite each parcel the name or names of the persons who are to HOW TO DRAW A SIMPLE WILL. 4;J get a beuetit iiiider the Will, and their share as he instructs. It is quite proper to procure all the information necessary to draw the Will by interrogation, but such a Will would be closely looked into by the Courts. After being certain that there is no more property, enquire how the testator "would devise any after-acquired property — in other words, who would be his residioinf devisee or legatee. Lastly, get the name of the executors (and guardians in the proper cases), and of any bequests outside the family. If he insists upon conditions or restraints, try and get them reasonable, and not repugnant to the enjoyment of the gift. Have no more than two executors, unless it is the Will of a married man, and that the wife is not considered suiHcient. The wife in such cases will be guardian unless some one else be men- tioned. It is better to name the wife, however, if you wish her to be guardian. Trustees are needed for large estates only, and in reference to land or other property taken in trust for the beneficiaries. The executors ordinarily have nothing to do with land, and their duties cease about a year after the testator's death. They collect in the outstanding debts due to the deceased, pay the debts due by him, and divide the residue among the legatees or next of kin in the event of an intestacy as to a part or whole of the estate. Nothing need be said about the testator's debts being paid, as that must be done whether there is a Will or not, or whether any direction be given. But if a testator desires that his debts be paid out of any particular fund, that is important. Ordinarily the debts are paid out of the per- sonal estate — the money, or bank stock, etc. — but the debts can be charged on a particular farm or lot, or directed to be paid by a particular person. In case the person has a husband or wife living and to be provided for, it is necessary to bring the best judgment pos- sible to the solution of the ditHcultv. r 1 It 44 HOW TO DRAW A SIMPLE WILL. 1^: If the husband owns the land out and out — in fee simple as it is called, then his wife has ordinarily her dower in it. It is true that in some cases the wife is precluded from dower — where there is a marriairo settlement, or in some cases as to wild lands, and perhaps in cases of adultery, and where she is disentitled to alimony from the hushand ; but in the general run of cases she gets from the law one third of the annual rents and profits of the land for her life after the husband's death, or she can have one third of the land measured out to her and live on it till her death. When the husband 7nakes liis Will, therefore, he must either give her sufficient to i oir isate fortius, or slie mfiy disregard the Will altogether. The endeavour should be, to give an allowance yearly or in gro^s, so that she would be likely to elect to take under tii3 ^ViU. She can do as she pleases after her husband's death, but once having elected, the step is generally final and cannot be revoked. Provision must therefore be made for the widow either by a sale of the land, or payment by the children, or the devisees as the case maj' be. The widow is moreover entitled to one-third of the personal property ahaolutdii, and if there be no children to one-half of it — not the interest or annual value of it as in the case of land, but the one-third or one-half of the entire sum. This must also be taken into account, a? it may come in before the creditors' claims. Her claim on land comes in on the balance after mortgages ; but computed on the whole "alue unless the mortgages were on the property before her mar- riage. However, these remarks are made to shew that a wife's dower may be more than the husband supposes, and that it is the best plan to be liberal with her. The law of dower cannot be compressed into a sentence — it is a very difficult branch of the law. The husband has sometimes an interest in the wife's lauds HOW TO DRAW A SIMPLE WILL. 45 — an interest called " tenancy by the courtesy"' * and where he has, he cannot be cut out by his wife's Will. He may 1)8 called upon to elect the same as a widow. He gets nothing unless there was a child born, but if entitled bis share is one-third of the lands— not interest on one-thir adult sensible persons rather than infants or persons of weak mind. Wills are seldom made in duplicate and need not be ref^istered except "Wills of land under the Mortmain laws. After the death of the testator the Probate of Wills relating to land should be registered within a year. Before the witnesses go away look over the Will and se. if you have everj'thing all right — the date — the executors — provisions for the widow and children — bequests to chari- ties in money and not in land or mixed up with land — the attestation clause regular — the signature of the testator or his direction for you to sign for him, or his mark — the witnesses present and signing when his name was signed — that if not i^resent he could see them — that they got no gift in the Will and that the wife or husband of a witness got nothing — that the testator was allowed to use his own free will — that he is neither under age nor enfeebled com- pletely by old age, and that he was neither drunk, nor mad, nor carried away by any insane delusion. It is well to make a memorandum of these matters so that afterwards you could if necessary give a satisfactorj' ac- count of yourself and of the Will in dispute. Note. — In old English Wills it was the general custom to begin with some pious invocation. " In the first years of Henry VIII. the universal form adopted is to leave the soul to Almighty God, the Blessed Virgin and the saints, and to have dirge and mass for the repose of the soul." The editor of the Vitiista Testamtnta remarks that as late as the year 152 1 the feelings which are manifested in the early testaments are as prominent then as at any previous time. The Wills of Thomas Rotherham, Archbishop of York (1500) or of the sub-dean of the same time and place, or of the famous Bishop of Winchester, Wiiiiam of Wykeham, could be copied by churchmen of the present daj in many particulars. King Henry V. directs that three masses be sung every day in the week while the world lasteth. Among remarkable English Wills are given that of Sir Thomas Windham the Earl of Warwick, and Earl Rivers, and Sir Thomas Latimer. Shakspeare's Will is quite a model of legal dryness, it is signed " William Shakspeare " which spelling ought to count for something in determining the proper orthogiaphy of his name. The Will of Columbus is remarkable as disposing of a continent and for the e.xtraordinary signature that he insists upon. 4 1 CHAPTER IX. MATTERS SUBSEQUENT TO THE MAKING OF A WILL. Pievocation by subsequent Will—by codicil — by clestroyimi the Willaniino revocandi—by the marriacie of the person makina the Will — Xorevocationbyehanye of circumstances — Probate — Executors' 2)osition and duties— Guardians. After a Will has beon made the testator mav change his mind and desire to make a new Will, or to make new- dispositions in the old Will, or may wish to cancel his Will altogether. Without any desire or thought thought about it, his Will may be revoked by operation of law. The sole case of this now is marriage. Marriage alone may revoke a Will made prior to such marriage ; formerly, in the case of a man it required marriage and the birth of a child to revoke a Will. Certain Wills made in the exercise of a power of appoint- ment are not affected by marriage. * No other change of circumstances in the testator will operate as a revocation to his Will ; and so the birth of a child after a Will is made dees not revoke the Will, nor does a sale of all the testator's property. * If a man makes his Will, and afterwards on the same tlnv marries, his Will is revoked. The law does not regard the parts of a day in such cases. t 1^ I- ^i. 66 HOW TO DRAW A SDirLE WILL. IH IS 1 ll i' A ^Yill Ciin be revoked by a subsequent Will, or by a codicil. A subsequent Will must of course be drawn with the same formalities as an earlier one, not forgetting the clause in it as to revocation. As has been said two Wills not inconsist- ent with each other can both stand, but the clause of revoca- tion sweeps away all prior Wills. Codicils must be executed in exactly the same way as Wills. Reference has been made in the last chapter to erasures and interlineations and the manner in which they must be witnessed and attested. Where some new provision is to be added it is better to make it in the way of a codicil, and to write it on the same paper on which the Will is written. It can begin by saying : *' This is a codicil to the Will of A. B. before mentioned. "I revoke the legacy to J. S. and I Will that $100 be paid to G. L." ox as the case may be. The codicil should be witnessed in exactly the same way as the Will with the attestation clause mutatis mutdudis — the two witnesses and the testator signing at the same time in presence of one another. The witnesses should not be beneticially interested under the Will or codicil. Care should be taken about expressions of revocation in a codicil, lest they be of too sweeping a character, and so, unless provision be made for the new state of affairs, an intestacy may arise. A Will cannot be revoked by a letter or other paper, unless these be signed in the same way as a Will, and a letter written by the testator and found among his papers revok- I MATTERS SUBSEQUENT TO THE MAKING OF A WILL. 57 ing bis Will was of no effect, there being no witnesses attest- ing it. ■ A "Will may be revoked by burning, cancelling, tearing, or otherwise destroying or obliterating it aniino revocandi. The destruction of a Will must be done either by the tes- tator, or by some one at his direction and in his presence ; so that it would not avail to take a Will into another room and destroy it there out of the testator's presence or out of the sight of the testator. A mere intention to destroy the Will is not sufficient nor is the destruction without the intention sufficient. Both are necessary to a complete revocation. Where a Will has been torn up, but not so destroyed as to prevent its being put together again in its original form, there need be nothing further done if the tearing or other destruction was done by accident, and not with the design of destroying tlie Will; but where done animo cancclhindi there must be a republication of the Will or as it is called in our statute a revival of the Will. It must be re-executed in the same manner as it was originally, with an intention to revive the Will and in presence of two ^vitnesses. A Will may possibly be revoked by cutting out the name of the testator and the names of the witnesses, or entirely obliterating the signatures ; but the safest plan is to burn the Will. And in doing so it is desirable to see that it is completely destroyed, so that no legatee could pluck it from the burning, and present it successfully thereafter for Pro- bate. Such cases have occurred. A man of unsound mind cannot revoke his Will, nor can any other person incapable of making one originally. After marriage a person should execute a new Will, or revive the old one by the formalities specified. A codicil 5 I) I< ' It: 58 HOW TO DRAW A SIMPLE WILL. n setting; out the circumstances is as good a way as any in Older to revive a Will. These four ways of revoking, or cancelling a Will, are all the ways recognized by the law for that purpose, and no other should be attempted. Publication of a Will is no longer necessary. Registration in the proper registry office of the Will alone is unusual, but after Probate has issued the Will should be registered within a year. Unless land is men- tioned in the Will it need not be registered at all. After the death of the testator the executors should do as little as possible until Probate has issued, unless where the conduct of the funeral devolves upon them, or where perishable property requires to be looked after. The whole personal property of the testator, whether in the Will or not, passes to the executors ; they must accept all, or refuse all, and in acceptance they become responsible for its safety and management. Personal property roughly includes everything that is not land ; such as money, bills, notes, stocks, mortgages, chattels, etc. These pass to the executors before Probate, but their legal title is under the Probate. The Probate is a proved copy of the Will issued b}' the Surrogate Court, and is one of the few instances in our law where the copy, rather than the original, is primarv evidence of the matters contained therein. The Probato- is the authority under which the executors act, and by it they demand the money and other chattel property due ib^ testator. Where the deceased had money in the bank, therefore, it is no use to take the Will to the manager and ask for payment ; you must take the Probate, and you are then legally the representative of the deceased, and succeed to his rights and duties. The Surrogate Court will not issue the Probate until seven davs after the death of the ■W' MATTERS SIBSEQUEXT TO THE MAKING OF A WILL. 59 party, and until the necessary proofs to lead to its grant have been filed with the Registrar of the Court. Probate may issue to several Wilis of the testator, where the last does not revoke the preceding one, and where both, or all the Wills dispose separately of a portion of the property. This is of course matter for a solicitor- -it is mentioned here merely to shew that prior Wills have sometimes to be considered ; and of course if the last Will is not properly executed, or if void for any reason, the next prior in point of date is to be considered. The only safe thing for an executor to do before he acts or renounces is to consult his solicitor. Simple cases may indeed arise in which the parties may not desire to incur expense, and where there is very little to be done. Where the papers fijed with the Surrogate Court have been sufficient, and Probate issued, the executors should insert an advertisement for creditors in the county or other paper most likely to reach the class among whom the deceased lived. This advertisement should run four or six weeks, and should name a day after which they will proceed to distribute the estate, disposing of such claims against the deceased as they have notice of in the meantime. The allowance and payment of claims are matters for the exer- cise of common sense on the part of the executors — they must act as prudently as in the management of their own affairs, and in doubtful or ditticult cases consult a solicitor. Everyljody knows that in thousands of Wills the greatest care of the Courts is called into requisition, in order to administer the estate properly. The advice given here is for the simplest cases only. I 60 HOW TO DRAW A SIMPLE WILL. I'-' 51' f .s I'i i-'J If •I-' 5 I! The benefit of an advertisement is very material, as it relieves the executors as to all debts, excepting those of which notice has been received. Before an executor should waive the insertion of an advertisement he should not only be certain that no debts exist — as frequently is the case — but also that he would be secured if any subsequently arose. In this case the advertisement may be shortened to two weeks, as is the practice in the Courts. After the debts have been disposed of, the ditferent legacies have to be paid. Unless expressly ordered in the Will, these are not payable till a year after the death of the testator. "Where the property is all turned into money, the pay- ment of legacies is ordinarily simple enough ; where there is chattel projierty — esjiecially if perishable — the executors should act promptl}', and either get a division among the parties entitled ; or, if this is not possible, get the property' appraised by a sworn valuator, and, if necessary, put it up for auction. In this case, it will be turned into cash (credit is given at the risk of the executors), and a division made as before. The executors have a right to enter the house of the deceased in order to get the goods therein, and the deeds and other papers, if they can do so without violence ; but they cannot break open doors or locks for that purpose. The executors must not purchase any of the gooilirine, are dthciunt in essential re>iiiisi(esof tliuir ie-,pcctivu professions."— Daviu I'all Uuown. Conflict hctireen doctors (iiulhiici/rrs as rcuarth insane persons — Disease in medicine — Conduct in laic — Medical r.iperts in Innaeij cases — Ilule in Laic — Mandslei/'s view — Jiroicn's reply — Vidue and extent ot medical testimony — Application uj cliapter — Classifications of insanity in laic and in medi- cine. It is a well-known fact in medical jurispnulence that a conflict of long standing exists between physicians on the one hand, and lawyers and the courts on the other, as to the manner in which insanity or unsoundness of mind ought to be determined. A lawyer understands madness to mean conduct of a certain character ; a physician regards it as a certain disease, one of the effects of which is to pro- duce such conduct. A learned writer seeks to show that the diiference is not real but imaginary — that it is a war of words only. Be that as it may, the conflict continues ; though, as might be expected, the Courts have adopted the view of the legal gentlemen. If insanity is to be judged by conduct, then they say, any man with senses about him can give as valuable expert testimony as a doctor. Mr. Justice Bramwell said that although " medical men were often heard in Courts of Justice to define insanity, he thought ordinary men of the world were just as well quali- lied to form an opinion on these matters as they were." Earl Shaftesbury, who for many years was a commissioner in lunacy, expressed himself to the same effect ; and both in England and in the United States vials of wrath were emptied on the heads of medical experts. Lord Campbell said "they came with such a bias on their minds to sup- port the cause in which they are embarked, that hardly any 04 APPENDIX. h weij^ht Hhoiild he ^'iveii to their evidence." An Ainerican jud^'o went further, and expressed himself to the etYect " thiit if there is iiny kind of testimony that is not only of no value, hut evi'U worse tiian that, it is that of medical experts." It is re^'arded elsewhere than from the hench as extremely unsatisfaetory ; and one learned author on Wills puts tliese experts in the; li^ht of hired advocates. Thecontest carried on in hi^'h quarters, with hy no means moderate lan^uapje, ori;^inated in l'hi;j;land mainly on account of a very celebrated trial known as thaWiiKlhion case. A i^reat amount of medical and other testimony was ^'iven, and in a case where manifestly the court and the public expected a declaration of insanity, the jury found the person sane — fifteen for and eight aj^ainst his sanity. This verdict was ility. 5. X medical witness should not assume the province of a jury, as, for instance, to say that a particular wound was till' cause of death ; he should only state that the ordinary eii'ect of such a wound, or, in a question of insanity, that the testimony given was an evidence, or was not an evidence, of insanity. 6. The medical witness should have his mind fully pre- pared Ijc'fore taking the stand as to what he can testify to, and his reasons, if they are required. He should in his testimony avoid as much as possible the use of technical I- APPENDIX. 71 I or professional terms which the jury may not likely l)e able to understand; but, if unavoidable, explain them. His evidence is deductions or inferences of facts, not facts themselves. It is an opinion, not an oath.^ It is well known that certain communications between a solicitor and his client are privileged — that is, the solicitor is not bound to disclose them in Court. A reason- will readily suggest itself for this to the unprofessional mind ; but it may not so readily appear why equally important or more important communications made between a doctor and his patient, or a clergyman and his penitent should not be regarded in the same light. Still the fact appears to be so as laid down in authoritative cases, though as regards clergymen with great diversity of opinion and practice. Clergymen and medical men are said to be bound to dis- close any information they get confidentially in their profes- sional character. A clergyman is excused from bringing an offender to justice on information received confidentially in confession; and if this be the law as said to be on high authority, then it is inconsistent with excluding him from the privilege of withholding information got in his profes- sional character. In the Iioman law penitential confessions to the priest are encouraged for the relief of the conscience, and the priest is bound to secrecy by the peril of punishment. " Confessio coram sacerdote in ptenitentia facta non probat in judicio qiii(( (WHUftur Until roraiii 1 >(•<>; imo si sacerdos eam enunciet incidit in pa'nam" : 1 Masc. Prob. Concl. 377. * It is not an unusual thing for a medical %vitness to be unable to under- stand the precise meaning of the question to be answered by him : and it is also within the experience of most lawyers that the answer when given is often beyond the comprehension of the bar and bench. There is a legal jargon that is bad enough, but it is mild and commnnplace wlien placed in juxtaposition with the apocalyjHic sisijiiipc(hiliti of the Escnlapians. A ■'severe contusion of the integ iments under the left <.>rlm, with great extravasation of blood and ecchyn; 'sis in the surrounding cellular tissue, which was in a tumetied state, with considerable abrasure of the cuticle." is one way of describing a black eye ; but it took all the good humour out of the presiding judge. In another reported case, a doctor was asked to state plainlv the cause of death in alleged child-murder, and he replied that it was "owing to atelectasis and a general engorgement of the pulmonary tissue." .-Vs regards the difliculty of not understanding exactly the question, a medical witness must decline to answer till he knows what he is answering. I I 72 APPENDIX. Questions of privilege not only (iri regards R. C. priests but as regards ministers of the Church of England have arisen in England, and in looking through the cases it is very doubtful if the law is as solidly settled as some text writers would suggest. The tirst case apparently deciding that the privilege did not extend to confessions was not a case of confession at all and was an ordinary communica- tion to a parish clergyman. Other cases were left largely to the particular view of the presiding judge. Chief Justice Best said he would never compel a confessor to disclose what his penitent confided to him in confession, and he reprobated the abuse of confidence if these disclosures were made without permission.* * In all places where the Roman Civil law is in force, as in France and other parts of the Continent of Europe, confessions are privileged, so also in Ireland and Scotland and many States of the American Union. By the 4th section of the Treaty of Paris, signed loth February. 1763, between England, France, Spain and some other European countries, his Britannic Majesty granted " the liberty of the Catholic religion to the inhabitants of Canada ; " and by the 26th section the high contracting parties " promise to observe sincerely and hoita fide all the articles contained and settled in the present treaty ; and they will not suffer the same to be infringed directly or indirectly by their respective subjects ; and the said high contracting parties generally and reciprocally guarantee to each other al! the stipu- lations of the present treaty." I I I ;•' ;^ : • I, 1^ THE EXD. I t, '