A final appellate court will not interfere with concurrent findings of fact by lower courts unless there is a miscarriage of justice or legal violation. Onus of proof is only decisive when evidence is evenly balanced, not when a positive conclusion is reached.

Viscount Dunedin.-

The late Edward Chandler Walker was at first senior partner of the firm of Walker and Sons, and thereafter when that firm was changed into a limited company was President of Walker and Sons, Limited, whiskey distillers, Walkerville, Ontario. He was a very wealthy man, married, but with no children, and he died on the 11th March 1915, leaving a widow. He left a will of date 27th February 1914, and the respondents are the trustees and the principal beneficiaries under the said will. The said will revoked all prior wills. The testator had made a prior will on 21st December 1901, under which the appellant is a beneficiary. The present action is at the instance of the appellant to set aside the will of 1914, and restore the will of 1901. The grounds on which he seeks to set aside the will of 1914 are :

Want of testamentary capacity in the testator on the date of the execution of the said will;

Fraud or undue influence by which the testator's brothers obtained the execution of the said will.

The appellant was manager of the company, both as a firm and afterwards as a limited company, for a long period, and was on terms of great intimacy with the testator. The appellant left Walkerville in 1914, and went to England. He alleges that he only came to know of the will of 1901 under which he was a beneficiary, and of the state of affairs as at the date of the will of 1914, in April 1922. On the 23rd June 1923, he raised the present action against the executors, and the beneficiaries were afterwards added as defendants.

The action was tried before Mowat, J., without a jury. Evidence was read on both sides. The evidence was voluminous and contradictory, and the trial lasted six or seven days. The learned Judge found that no testamentary incapacity of the testator had been made out, and that it had not been shown that the execution of the will was induced by fraud or undue influence, and he dismissed the action. Appeal was taken to the Appellate Division of the Supreme Court of Ontario, and that Court unanimously affirmed the judgment of the trial Judge. Appeal has now been taken to the King in Council, and the appellant has sought to induce their Lordships who sat on this Board to examine and revise the evidence and to come to the conclusion that the result arrived at by the trial Judge and the Court of appeal was wrong. This raises in a quite distinct way the question of whether their Lordships will examine the evidence in order to interfere with the concurrent findings of two Courts on a pure question of fact. Whether a man at the time of making his will had testamentary capacity, whether a will was the result of his own wish and act or was procured from him by means of fraud or circumvention or undue influence, are pure questions of fact. The rule as to concurrent findings is not a rule based on any statutory provision. It is rather a rule of conduct which the Board has laid down for itself. As such it has gradually developed. The judicature which has given greatest occasion for its development has undoubtedly been the judicature of India, but the principle is not in any way limited in its application to Indian legislation or Indian law, be it Hindu or Moslem, as such. Indeed it is obvious that if such a rule is a good rule to be applied to the findings of the Courts in India, there could be no reason for suggesting that the findings of the Courts of our great self-governing Dominions should be entitled to less consideration. Their Lordships wish it to be clearly understood that the rule of conduct is a rule of conduct for the Empire, and will be applied to all the various judicatures whose final tribunal is this Board.

Being, as has been said, a rule of conduct, and not a statutory provision, the rule is not cast iron, but it would avail little to try to give a definition which should at once be exhaustive and accurate of the excaptions which may arise. It will be sufficient to quote what has been said on this subject in th