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![handle is hein.slavery/ssactsengr0542 and id is 1 raw text is: VIII MOORE N.s., 373 MESSINA V. PETROCOCCINO [1872]
tents and effects what they may, must be valid. I know of no principle to that
broad extent ever laid down; nor was any authority cited in support of it. The
rule which I take to operate, in the case of every unfinished paper, is this : can the
Court infer that by pronouncing for it, it will carry into effect what it collects,
from all the circumstances of the case, to have been the deceased's wish? In that
event it will be its duty to pronounce for it-but surely not, if it sees reason to
believe that, by so doing, it will defeat or counteract, instead of giving effect to
that wish.
In another case (Nathan, v. Morse) (3 Phil. 530-1) the same [373] learned Judge
said:- The facts are satisfactorily established-I have no doubt in pronouncing
this to, be the Will of the deceased, as far as to the appointment of the Executor:
but it is perfectly clear that the other part was not committed to writing during the
life of the deceased. Although the Court goes the utmost length to give effect to
intention clearly proved, and reduced into writing in the lifetime of the Testator,
yet it has never held that anything added to a Will after death can be established.
Death consummates the instrument-nothing can be added afterwards.
The last clause must be pronounced against and struck out of the Will.
I have no doubt of pronouncing for the Will without it.
It was suggested that these decisions, which were made in 1820-2, were judicial
developments of the doctrine as to imperfect Testamentary papers, and were not
intended to be incorporated into the Canadian Law by the Statute of 1808. But
unfortunately for this argument, various decisions of Sir George Lee, a most
learned Ecclesiastical Judge, in 1757, fully establish the doctrine which Sir John
Nicholl, in 1820-1, did not in truth develop, but declared to be the acknowledged
existin-z law.
There can be no doubt that in this case it did completely express the wishes of
the Testator, and, therefore, tried by the principles laid down in these and other
cases, the paper containing the instructions written out by the Notary is entitled
to Probate.
It remains only to consider the objection that the evidence by which these in-
structions are proved to [374] contain the testamentary intentions of the deceased
is inadmissible according to the lex fori-that is, the Canadian French Law; and
for this position Art. 1233, sect. 7, was relied upon, which requires that there must
be a commencement of proof in writing (commencement de preuve par crit) in
order to admit the oral testimony of Witnesses. If it were necessary to consider
whether, in this case, this condition as to the commencement in writing had been
fulfilled, their Lordships would be strongly inclined to hold that it had been ful-
filled ; but in truth the case is not one to which the doctrine of the lex fori prevailing
as to the admission of evidence is applicable at all. The law which introduced
into the Colony the English Law as to Wills must be considered as having intro-
duced it with all its incidents, and, therefore, with the admissibility of oral
evidence, without which, indeed, the new law would be nugatory and of no effect.
Their Lordships have, therefore, arrived at the conclusion that the judgment
appealed from should be reversed; that the judgment of the Superior Court of
Canada in favour of the Appellant should be affirmed, and that the Respondents
should pay the costs of this appeal and those of the Court of Queen's Bench in
Canada.
[Mews' Dig. tit. COLONY, II. PARTICULAR COLONIES, 4. British North America--
Will-Prepxtration of by Notary. S.C. L.R. 4 P.C. 123; 41 L.J. P.C. I1; 26
L.T. 329; 20 W.R. 527.]
[375] ON APPEAL FROM THE COURT OF APPEAL FOR THE
ISLAND OF MALTA.
ROSARIO MESSINA,-Appellant; EUSTACHIO P. PETROCOCCHINO,-
Respondent * [Jan. 30 and Feb. 3, 1872].
A foreign judgment of a competent Court is conclusive, and not open to examina-
* Present :-Sir James William Colvile, Sir Robert Phillimore (Judge of the High
Court of Admiralty), Sir Montague Edward Smith, and Sir Robert Porrett Collier.
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