HARMES Vs. HINKSON
LAWS(PVC)-1946-5-4
PRIVY COUNCIL
Decided on
May 13,1946
HARMES
Appellant
VERSUS
HINKSON
Respondents
Cited Judgements :-
SIBDAS DUTTA VS. NIRMAL CHANDRA DUTTA [LAWS(CAL)-1978-9-4] [REFERRED TO]THANUJA SUNDERDAS VS. SISIRKUMAR RAJ [LAWS(KER)-2006-7-73] [REFERRED TO]
V VELAYUDHAN NAIR VS. KALLYANIKUTTY AMMA [LAWS(KER)-2006-1-42] [REFERRED TO]
PEDDI SIVAIAH VS. TEKCHAND [LAWS(APH)-1964-7-35] [REFERRED TO]
VINTHA VENKATESWARA REDDI VS. ANJAMMA [LAWS(APH)-1965-9-6] [REFERRED TO]
CHAIRMAN/ SECRETARY VS. NARANPURA MAZDOOR KAMDAR SAHKARI MANDLI LTD [LAWS(GJH)-2015-10-295] [REFERRED]
KANTHI RAM BORA VS. DOM BORA [LAWS(GAU)-1975-1-1] [REFERRED TO]
Bahramji S. Motiwala VS. Rustomji S. Motiwala [LAWS(MPH)-1959-10-18] [REFERRED TO]
MAHANTH CHANDRAMANI DAS VS. RAM RAJESHWAR DAS [LAWS(PAT)-1998-11-46] [REFERRED TO]
KISHAN SINGH VS. JAWAHAR SINGH AND OTHERS [LAWS(HPH)-2012-12-140] [REFERRED TO]
KUMARI SURBHI SOOD AND ANOTHER VS. SHRI SURENDER KUMAR SOOD AND OTHERS [LAWS(HPH)-2018-6-100] [REFERRED TO]
AJIT KUMAR VS. MUKUNDA LAL [LAWS(CAL)-1987-11-9] [REFERRED TO]
RAJESH CHAND VS. DAYAWANT [LAWS(DLH)-1980-3-34] [REFERRED HUGUENIN V. BASELEY]
CHANCHAL KUMAR DAS VS. PASUPATI NATH DAS [LAWS(CAL)-2005-2-32] [REFERRED TO]
NEERAJ KATYAL AND ORS. VS. STATE AND ORS. [LAWS(DLH)-2016-2-165] [REFERRED TO]
IN GOODS OF SISIR KUMAR BHATTACHARJEE (DECEASED) VS. DIPTI CHATTERJEE & ORS [LAWS(CAL)-2018-11-2] [REFERRED TO]
A.S.K. SIRCAR, ETC. VS. MRS. JOTCE CYNTIA PRABHAKAR AND OTHERS, ETC. [LAWS(ALL)-2006-4-342] [REFERRED TO]
VIPIN PARERA VS. DAVID LAGHRAN [LAWS(MPH)-1998-8-17] [REFERRED TO]
BRIJBASUA VS. VISHNUDEV SINGH [LAWS(MPH)-1999-12-34] [REFERRED TO]
SITARAM DUBEY VS. MANAKLAL [LAWS(MPH)-2013-5-11] [REFERRED TO]
A E RAMA KURUP EDITOR "MALAYALI" VS. UNITED STATE OF TRAVANCORE-COCHIN [LAWS(KER)-1949-10-1] [REFERRED TO]
FAUJMAL VS. NATHULAL [LAWS(RAJ)-1964-11-13] [REFERRED TO]
SM NOILI DIBYA VS. MADHUSUDAN TIHADI [LAWS(ORI)-1951-8-3] [REFERRED TO]
SULOCHANA KANDI VS. DIPTIREKHA KANDI [LAWS(ORI)-2004-3-35] [REFERRED TO]
HARIHAR PRASAD SAO VS. BHAGWAN DAS [LAWS(PAT)-1970-11-1] [REFERRED TO]
MOHD GHOUSUDDIN VS. KHAJA MOINUDDIN [LAWS(APH)-2009-7-24] [REFERRED TO]
DILIP DUTTA BHOWMIK VS. MIRA DUTTA BHOWMIK [LAWS(GAU)-2006-11-26] [REFERRED TO]
SANTOSH KAKKAR VS. RAM PRASAD [LAWS(DLH)-1998-1-93] [REFERRED]
KAMLA VS. GIRDHARI [LAWS(RAJ)-1966-3-12] [REFERRED TO]
JEYARAJ VS. GANGAMMAL [LAWS(MAD)-2001-10-104] [REFERRED TO]
KAVITA KANWAR VS. PAMELA MEHTA [LAWS(SC)-2020-5-16] [REFERRED TO]
NARAYANA IYER VS. VENKITASUBRAMONIA IYER [LAWS(KER)-1957-2-29] [REFERRED TO]
MOOLCHAND CHHOTELAL VS. AMRITBAI MANJI KHODA BHAI [LAWS(MPH)-1976-2-3] [REFERRED TO]
RAJANI KUMAR VERMA VS. ESTATE OF BHATTU MAHTO AND ORS. [LAWS(PAT)-2016-4-9] [REFERRED TO]
BRIJ KISHORE SINGH VS. THE STATE OF BIHAR AND ORS. [LAWS(PAT)-2016-4-10] [REFERRED TO]
SMT. KARIAR KAUR VS. GURBAX SINGH AND OTHERS [LAWS(P&H)-1969-10-11] [REFERRED TO]
SREEDEVI VS. R RADHAKRISHNAN NAIR [LAWS(KER)-2018-5-95] [REFERRED TO]
AJIT CHANDRA MAJUMDAR VS. AKHIL CHANDRA MAJUMDAR [LAWS(CAL)-1959-12-15] [REFERRED TO]
M. NARAYANAMMA VS. LAKSHMIDEVI AND ORS. [LAWS(KAR)-2015-2-5] [REFERRED TO]
KUNCHERIA VS. K.A. REYAS [LAWS(KER)-1999-2-65] [REFERRED TO]
INDUBALA TIRKI VS. HAROLD KIRTI KUMAR JACOB [LAWS(CHH)-2009-11-31] [REFERRED TO]
KAILASH SUNEJA VS. APPROPRIATE AUTHORITY INCOME TAX DEPARTMENT [LAWS(DLH)-1997-12-37] [REFERRED TO]
JESRAJ JIWANRAM VS. COMMISSIONER OF INCOME TAX [LAWS(GAU)-1953-2-1] [REFERRED TO]
P KAMAKSHI AMMA VS. P VENKATESAN [LAWS(MAD)-1985-4-23] [REFERRED TO]
MANISH TIWARI VS. SAVITA [LAWS(MPH)-2023-2-103] [REFERRED TO]
ZARINA R IRANI VS. SHAPUR JAWANMARDI [LAWS(BOM)-2004-7-266] [REFERRED]
RAJESH ARORA VS. STATE [LAWS(DLH)-2009-3-2] [REFERRED TO]
MOHAMMAD RASHID VS. DEPUTY DIRECTOR OF CONSOLIDATION LUCKNOW AND ORS [LAWS(ALL)-2017-3-72] [REFERRED TO]
R P KHOSLA VS. GENERAL PUBLIC [LAWS(P&H)-1992-6-35] [REFERRED]
THRISANGU VS. RAJAMMAL [LAWS(MAD)-2014-11-146] [REFERRED TO]
CELESTINE SILVA BAI AND OTHERS VS. JOSEPHINE NORONHA BAI AND ANOTHER [LAWS(MAD)-1956-1-27] [REFERRED TO]
RM. AK. P. KANNAMMAL ACHI AND ORS. VS. A.N. NARAYANAN CHETTIAR [LAWS(MAD)-1968-8-38] [REFERRED TO]
Bahramji VS. Rustamji [LAWS(MPH)-1959-10-10] [REFERRED TO]
RAJESHWARI RANI PATHAK VS. NIRJA GULERI [LAWS(P&H)-1976-10-24] [REFERRED TO]
BIMLA DEVI VS. UMA DEVI [LAWS(PAT)-2016-3-44] [REFERRED TO]
ZARINA R IRANI VS. SHAPUR JAWANMARDI [LAWS(BOM)-2004-7-33] [REFERRED TO]
K M VARGHESE VS. K M OOMMEN [LAWS(KER)-1993-7-67] [REFERRED TO]
PUNNI VS. SUMER CHAND [LAWS(HPH)-1994-4-15] [REFERRED TO]
RAMA KURUP VS. SIRKAR [LAWS(KER)-1949-10-11] [REFERRED]
BHAGYA WATI JAIN VS. GENERAL PUBLIC [LAWS(P&H)-1994-2-86] [REFERRED TO]
CHEWAG DORJEE LAMA VS. LEARP DORJEE BHUTIA [LAWS(SIK)-2006-6-2] [REFERRED TO]
V.E. DESOUZA AND ANR. VS. R.P. DESOUZA AND ORS. [LAWS(MPH)-1955-12-5] [REFERRED TO]
BHAGWANDAS NANDLAL VS. CHHAGANLAL BINJOOLAL [LAWS(MPH)-1970-12-14] [REFERRED TO]
CHINNAMMAL VS. KANNAGI [LAWS(MAD)-1988-9-13] [REFERRED TO]
SISIR KUMAR ROY VS. AMIYA ROY [LAWS(CAL)-1974-5-29] [REFERRED TO]
MARY ASSUMPTION TRADING VS. VINCENT MANUEL TRINIDADE [LAWS(DLH)-1975-8-23] [REFERRED]
JANARDAN BADRINARAYAN PATEL VS. SHETH AMBALAL HIMATLAL [LAWS(GJH)-1998-12-56] [REFERRED TO]
MOSLEM MONDAL VS. UNION OF INDIA [LAWS(GAU)-2010-2-1] [REFERRED TO]
JUDGEMENT
Lord Du Parcq -
(1.)On 4 April 1941, one George Harmes died at the Grey Nun's Hospital in the city of Regina. Two days later, Mr. Hinkson, the respondent to this appeal to His Majesty in Council, brought to the manager of the Canada Permanent Trust Company at its office in Regina a document which purported to be the will of George Harmes. It was dated 3 April 1941, and named the Trust Company as executor. On 2 May, 1941, a petition was presented by the Trust Company, as executor to the Surrogate Court of the Judicial District of Regina praying that the will might be proved in solemn form. Its validity had been challenged by the next of kin, one of whom, Paul Harmes, is the first named appellant. The others, who lived in Greece, were represented in the ensuing proceedings by the second appellant, the Custodian of Enemy Property. In due course an order was made directing a trial to determine the validity of the will, and in particular the following issues: (a) the testamentary capacity of the deceased at the time of its execution, (b) its due execution, (c) the knowledge and volition of the testator as to its contents, (d) the allegation that the execution of the will was procured by the undue influence of Hinkson.
(2.)The learned Judge of the Surrogate Court, after a lengthy trial, affirmed the will, and decreed probate in solemn form. On appeal, the Court of Appeal for Saskatchewan (by a majority, the Chief Justice dissenting) reversed the decision of the Surrogate Court. There was a further appeal to the Supreme Court of Canada. This appeal was heard by five Judges, Rinfret, Kerwin, Hudson, Taschereau and Gillanders JJ. By a majority, Hudson J. alone dissenting, the appeal was allowed and the decree of the Surrogate Court was restored. Paul Harmes and the Custodian of Enemy Property sought and obtained special leave to appeal to His Majesty in Council, and their Lordships, with the valuable assistance of counsel, who put their opposing contentions before the Board with much force and commendable moderation, have given anxious consideration to a case which has caused so striking a difference of judicial opinion.
(3.)The facts need only be stated in the barest outline to show that the circumstances in which the will was made called for strict investigation. George Harmes was a dying man when he signed the impugned document. He was suffering from a disease which, though it may not impair the intelligence, induces mental torpor and, in the end, coma. The total value of his estate was about $65,000. Under the will, the respondent Hinkson, by a devise and bequest of the residue, was to benefit to the extent of somewhat more than $50,000. And it was Mr. Hinkson, a gentleman who by profession is a barrister and solicitor, who drew the will, with no witness present until, after the body of the document was complete, two nurses were called in to witness its due execution. "From the outset," said the learned Judge of the Surrogate Court, "the document is charged with suspicion," and no one has questioned this opinion. In order that the matter in dispute may be properly understood, more of the facts must be stated, and something must be said of the two men who alone were concerned in the making of the will, George Harmes and Ernest Hinkson. George Harmes was born in Greece, of poor parents. When he was no more than fourteen years of age he left his native country for the United States of America, and there he lived until, about thirty years before his death, he left the United States for Canada, and settled in Regina. He seems to have had little education, but considerable aptitude for business. He had done well in trade, was the proprietor of a number of shops in which fruit and confectionery were sold, and had finally acquired a hotel which seems to have been favourably regarded, not least because of a popular beer parlour which was part of the establishment. Harmes is said to have been a genial and friendly man and many witnesses were called who counted themselves among his friends. He was a bachelor. His nephew, the appellant Paul Harmes, lived in Toronto, and he had two sisters, some nephews and a niece living in Greece. His nephew Paul had at one time assisted him in the management of his hotel, but he had lost touch with his kinsfolk in Greece and took little interest in them. He seems to have been a man of strong opinions, with, as was said, "a mind of his own." He died at the age of 57.
(2.)The learned Judge of the Surrogate Court, after a lengthy trial, affirmed the will, and decreed probate in solemn form. On appeal, the Court of Appeal for Saskatchewan (by a majority, the Chief Justice dissenting) reversed the decision of the Surrogate Court. There was a further appeal to the Supreme Court of Canada. This appeal was heard by five Judges, Rinfret, Kerwin, Hudson, Taschereau and Gillanders JJ. By a majority, Hudson J. alone dissenting, the appeal was allowed and the decree of the Surrogate Court was restored. Paul Harmes and the Custodian of Enemy Property sought and obtained special leave to appeal to His Majesty in Council, and their Lordships, with the valuable assistance of counsel, who put their opposing contentions before the Board with much force and commendable moderation, have given anxious consideration to a case which has caused so striking a difference of judicial opinion.
(3.)The facts need only be stated in the barest outline to show that the circumstances in which the will was made called for strict investigation. George Harmes was a dying man when he signed the impugned document. He was suffering from a disease which, though it may not impair the intelligence, induces mental torpor and, in the end, coma. The total value of his estate was about $65,000. Under the will, the respondent Hinkson, by a devise and bequest of the residue, was to benefit to the extent of somewhat more than $50,000. And it was Mr. Hinkson, a gentleman who by profession is a barrister and solicitor, who drew the will, with no witness present until, after the body of the document was complete, two nurses were called in to witness its due execution. "From the outset," said the learned Judge of the Surrogate Court, "the document is charged with suspicion," and no one has questioned this opinion. In order that the matter in dispute may be properly understood, more of the facts must be stated, and something must be said of the two men who alone were concerned in the making of the will, George Harmes and Ernest Hinkson. George Harmes was born in Greece, of poor parents. When he was no more than fourteen years of age he left his native country for the United States of America, and there he lived until, about thirty years before his death, he left the United States for Canada, and settled in Regina. He seems to have had little education, but considerable aptitude for business. He had done well in trade, was the proprietor of a number of shops in which fruit and confectionery were sold, and had finally acquired a hotel which seems to have been favourably regarded, not least because of a popular beer parlour which was part of the establishment. Harmes is said to have been a genial and friendly man and many witnesses were called who counted themselves among his friends. He was a bachelor. His nephew, the appellant Paul Harmes, lived in Toronto, and he had two sisters, some nephews and a niece living in Greece. His nephew Paul had at one time assisted him in the management of his hotel, but he had lost touch with his kinsfolk in Greece and took little interest in them. He seems to have been a man of strong opinions, with, as was said, "a mind of his own." He died at the age of 57.
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