1869. EVANTUREL V. EVANTUREL. pellants insisted, in the Court below, that the Will The facts of the case were as follows: The Respondent was the only Son, and sole Executor, and residuary legatee in usufruct of the late Madame Evanturel; the Appellant, Émilie Malvina Evanturel, was his Sister, who sued with her Husband the Appellant, Édouard Rémillard. The suit commenced by a claim to the succession of the late Madame Evanturel (pétition d'hérédité), filed by the Appellants in the Superior Court of Lower Canada. The petition alleged, in substance, that Madame Evanturel died on the 10th of November, 1863, leaving five children surviving her, namely, one Son, the of the other Notary, and in his presence he re-read to the Testatrix the additions and corrections made. As the Testatrix could not write, the "énoncé sacramental" was as follows:-" A declaré ne savoir ni écrire ni signer de le requise :” Held (affirming the judgment of the Court of Queen's Bench in Lower Canada, on the appeal side), that the execution of the Will was good, and that the requirements of the 289th Article of the Coutume de Paris had been sufficiently complied with, as the words "dicté et nommé par le Testateur aux dits Notaires" did not require, in express terms, that the Will should be written by a Notary at the time of dictation by the Testatrix. Respondent, François Evanturel, and four Daughters, Maria Marguerite Evanturel, the Wife of Alfred Paré; Sophie Evanturel, the Wife of Louis Timothé Suzor; the Appellant, Émilie Malvina Evanturel, the Wife of the Appellant, Édouard Rémillard; and Elmire Aglaé Evanturel, unmarried; that such five children constituted the sole heirs of Madame Evanturel, and that consequently each of them was entitled to one-fifth share of her property; that nevertheless the Respondent had unlawfully possessed himself of the whole of the property of the deceased, to the exclusion of his Sisters; and the petition prayed that the Respondent should be ordered to deliver up to the Appellants one-fifth share of such property, with all profits accrued thereon, and to pay the costs of the suit. To this petition the Respondent replied by a peremptory and perpetual exception in law (exception péremptoire en droit perpétuelle), in which he pleaded the Will in question, dated the 18th of May, 1861, made by his late Mother. The Will, the due execution of which was alone in contest, after directing payment of the Testatrix's debts, comprised a donation by Instrument inter vivos, which she had executed on the 1st of December, 1860, of a piece of land in Quebec, in favour of the Respondent, and giving certain specific legacies and annuities, declared that she discharged her Son from all accounts and claims against him as her Agent or Attorney during her lifetime, and appointed him sole Executor thereof. The Testatrix was unable to write, though capable of reading to some extent, and in consequence the manner in which the Will (which was in French) was executed was stated on the face of it as follows: 1869. V. EVANTUREL. "Ce fut ainsi fait, dicté et nommé par la dite EVANTUREL Dame veuve François Evanturel, Testatrice, aux dits Notaires soussignés, et son présent testament lui ayant été lu et relu par Mtre. Joseph Petitclerc, l'un des dits Notaires, en présence de Mtre. Phillippe Huot, son confrère, pour ce mandé, la dite Dame Evanturel a dit le bien entendre et comprendre, et y a persisté, à Québec, en l'étude de Mtre. Joseph Petitclerc, l'un des dits Notaires, l'an mil huit cent soixante et un, le dix-huitième jour du mois de Mai, après-midi, sous le numéro onze mille six cent quatrevingt six. Et la dite Dame veuve François Evanturel a déclaré ne savoir ni écrire ni signer de ce requise lecture faite et refaite. Soixante-trois mots rayés sont nuls. Trois renvois approuvés sont bons. -Phi. Huot, N.P. Jh. Petitclerc, N.P." The Appellants replied to the Respondent's exception by general answers, affirming their original petition and traversing the exception of the Respondent. And by a special answer they denied the validity of the Will propounded by the Respondent on the grounds of incapacity and undue influence, and also on the ground of insufficient and informal execution. The Appellants afterwards moved before the Superior Court of Lower Canada that they might be at liberty "de s'inscrire en faux" against the Will pleaded by the Respondent, to take proceedings for the purpose of showing that the Will was not duly executed as a testamentary instrument. An inscription en faux is, by the Law of France and Lower Canada, necessary when a public Testament, or Testament solennel, purporting on the face of it to have been duly dicté et nommé by the Testator to two Notaries, is sought to be annulled, as not having been in fact so dicté et nommé. 1869. EVANTUREL ሀ. Leave was granted, and they then obtained an EVANTUREL. Order, according to the ordinary practice when there is an "inscription en faux" against an exhibit, that the Will should be lodged in the office of the Prothonotary of the Court. They afterwards filed a statement of their objections to the due execution of the Will, "moyens de faux." The objections so pleaded were as follows:-First, that the pretended Will of the late Dame Evanturel, under date the 18th of May, 1861, was not dicté et nommé by her to M. Jh. Petitclerc and his Colleague, Notaries Public, as falsely alleged in the pretended Will. Secondly, that the pretended Will was not dicté et nommé by her to M. Petitclerc and his Colleague, Notaries Public, on the 18th of May, 1861, as falsely alleged by the pretended Will. Thirdly, that important parts of the pretended Will (other than the preamble), appeared to be manuscript, written or altered in a strange hand, other than that of either of the two Notaries who passed the . Will. On the objections so pleaded issue was joined. The cause was heard on the 10th of June, 1864, in the Superior Court of Lower Canada, before the Hon. J. T. Taschereau, Assistant Judge. In order to support the above objections, the Appellants called as witnesses, Petitclerc and Huot, the two Notaries before whom the Will was passed, and the Testatrix's legal adviser Casault. Their evidence as to the execution of the Will was to the following effect:-M. Petitclerc, the family Notary, was summoned by the Testatrix, on the 16th of May, 1861, 1869. v. EVANTUREL. and went to her in the afternoon of that day. He EVANTUREL found Madame Evanturel alone, and she said at once that she wanted to make her Will, and then and there dictated her wishes, of which he made a Memorandum. This Memorandum contained, in an abbreviated form, all the dispositions and bequests which appeared in the Will. The Testatrix then told him to draw up her Will according to these instructions, and to send it to her that she might have it examined by her Counsel. He drew up the Will according to these instructions the same day or the day following, and sent it back to Madame Evanturel. On the afternoon of the 18th of May, Madame Evanturel came to his office to execute her Will, bringing with her the draft which had been sent to her; M. Petitclerc took it and examined it, and finding some words on the fifth page in a strange hand, he scratched them out at once; he then sent for his Colleague, M. Huot, to assist at the execution. On M. Huot's entrance, M. Petitclerc requested the Testatrix to say what her last wishes were; and she repeated in brief all the requests and dispositions contained in the Will. M. Petitclerc took the Will, read it, and having done so, asked Madame Evanturel if she wished to add or alter anything. Madame Evanturel then made some trifling emendations, and then desired him to add the words which he had already found in the margin, written in a strange hand, to the effect, that if any of her Daughters tried to dispute her Will, the legacy to such Daughter or Daughters should be void and fall into residue; at her request he added these words in his own handwriting, and he and his Colleague verified the addition by affixing to it their initials. M. Petitclerc then read the Will once again, |