His Honor
Judge Robb hands out his finding in the
much talked of will case.
On Tuesday His Honor Judge Robb handed out a lengthy judgment in
the will case of England vs. Rose, particulars of which have already
appeared in the columns of the Reformer.
It will be remembered that the deceased was a retired farmer of the
Township of Woodhouse, William, commonly called Tailor, Rose, who at
the time of his death was in his 83rd year.
Within a few months of his demise, Rose had some four wills
executed, all of them differing widely in the manner of disposing of
his property.
The last will was made very shortly before he died and after he had
been taken sick. It was drawn up by a neighbor, Alex. England, who was
called in for that purpose.
England and another neighbor, Frank H. Kent, were in this will
named as executors of the property testator had remaining, which was
all given to one son, John A. Rose. None of the other children were
mentioned in this will, although in the previous wills he had divided
it among them.
The other children all live in the United States and at the time he
made his last will he gave as his reason for leaving all his property
to John, that he was dissatisfied with the other children because they
never came to see him or wrote to him while John living beside him was
always kind and attentive.
We have not space to publish the judgment in full as handed out by
His Honor.
In speaking of the alleged mental incapacity of deceased, Judge
Robb said, "Dr. David Rose swore that his father was suffering
from chronic alcoholism, that he had absolutely no memory left, could
not remember for 15 minutes.
"But other witnesses gave a very different account. One who
had known him for a long time said that he had never even heard that
he was an intemperate man until it was so stated in the witness box of
the trial.
"Many of the facts given in evidence show unaided efforts of
memory on the testator's part quite inconsistent with Dr. Rose's
theory."
Further along Judge Robb says "I find that on the day that
testator executed this will he was perfectly sober. He sent for Mr.
England. It is true the messenger was his son John, who was to be the
sole beneficiary -- he had no one else to send -- but John appears to have taken no
initiative in the matter.
"He is sent away for a second witness and the testator
explains the simple provision he wants to make and his reason for it.
He wants everything left to John because, since his wife's death none
of his other children had ever written to him or taken any notice of
him, while John and his family had been most attentive.
"When Mr. England objected that he had never drawn a will and
did not know how to proceed, the testator was equal to the occasion
and told him he could follow the will that was on the table, the one
drawn by Mr. Skey, that it would only be necessary to substitute
John's name for the names of the beneficiaries under that will.
"When the will was at length written, it was read over to him.
When he heard the phrase 'Real and personal estate' he evidently
remembered the disposition he had made of his freehold property for he
said, 'I have no real estate,' and then inquired 'Can that refer to
this place?'
"Mr. England, who had witnessed the trust deed made answer,
"No, you have deeded that away already.' He was asked if he
understood the will and answered in the affirmative, and when after
attempting to sign his name, finding himself unable to do so, even
with assistance, he informed the others that the signature would be
equally valid if written for him by someone else, and he asked Mr.
England to write it for him.
"I think that it must be held that he clearly understood what
he was doing, the nature of the act and its effects, that he had full
knowledge of the property he had to dispose of, had in mind the
several persons who would naturally be the objects of his bounty and
their claims upon him, and in deliberately shutting out all his
children save one from any share in his estate he was laboring under
no insane delusion with regard to those whom he thus excluded, but
gave as a reason for his action what was an undisputed fact.
"I think there is only one proper conclusion from this
evidence and that I must hold that the paper propounded is the last will and testament
of the deceased Wm. Rose, and must be admitted to probate as such.
"I have given much anxious consideration to the question of
costs and the conclusion I have come to is this:
"The executors should have their costs out of the estate as
also the infant represented by the official guardian as between
solicitor and client.
"The defendants, Adam George Rose, David Rose, Daniel Rose and
William Rose, I do not condemn to pay the costs as there were some
grounds for raising the question of testamentary capacity caused by
the testator himself, but I do not allow them costs out of the estate
as there was no ground for the charge of undue influence pleaded by
them.
"The other defendents should have their costs out of the
estate as between party and party."
