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ATTAPATTU v. JAYAWARDENE el alPresent: Bertram C.J. and Ennis J.
S—B. C. Colombo, 67.
Last will—Will not forthcoming at death of testator—Presumption that
will was destroyed animo revocandi.
If a will is made by a testator and is shown to have been in hispossession and is not forthcoming at his death, it is presumed tohave been destroyed ammo revocandi. .
It is a necessary condition to the coming into effect of the pre-sumption that the* Court should be satisfied that the will was notin existence at the time of the death. The onus of this is on thosewho assert it. It must be borne in mind in this connection thatthere is a presumption against the hypothesis of a fraudulentabstraction.
Even in the absence of positive evidence, the Court may presumethat the will was in the actual custody of the deceased.
Where a will was executed by a notary who was dead, the Court,in the circumstances of the case, drew the inference that the original' was handed over to the' custody of the testator.
HE facts appear from the judgment of the District Judge(W. Wadsworth, Esq.):—
This is an application for letters of administration to the estate ofone Don David Simon by his widow, the petitioner. The respondentsare the children of the deceased by his first wife. The first respondent,the eldest daughter of the deceased, consents to letters to'the petitioner.The objection is by some of the other children, mainly by the seventhand fifth respondents. The seventh respondent is the eldest son of thedeceased. Deceased married the petitioner on November 18, 1915.He had no children by the petitioner.
Application was made for letters on the footing that the deceaseddied intestate. The opposing respondents say that deceased left a will,dated November 19, 1915, a day after his marriage with petitioner.The original of the will is not produced. It is missing. The will issaid to have been executed in duplicate. The witness called is not surewhether it was executed in one, two, or three copies.. However, theduplicate is produced from the Registrar-General's Office. The notary
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1921. who attested the will is dead. It is not seriously contested that the—duplicate was signed by the deceased and attested by the notary andAtiapdttu v. two witnesses. In fact, the notary was a proctor of this Court for manyJayawardem years> ancj an those who know liim well cannot fail to identify his well-known signature. There appears to be some question as to where andwhen this duplicate was signed. The Court is not called upon toadjudicate on this point, but it is to be noted that the date “seventeenth ”had been altered to “ nineteenth, ” and “ Hultsdorf.” altered to “ Wella-watte ” ; and towards the end, in the blank space for dat.e, the word“ nineteenth ” is inserted. The alterations are unfortunately netinitialled, either by the deceased or by the notary, and it is not clearwhen or by whom the alterations were made, or whether the alterationswere made on purpose or not. It is not necessary to state anythingfurther about it, as the issue whether the deceased died leaving a willcan be decided without going into the question of the alterations or thevalidity or otherwise of the document.
The original of the will is not forthcoming. There was a very vaguesuggestion that the deceased had the original, but that the petitionerhad made away with it, and in support the seventh respondent, whopractically had the conduct of the case as a last resort, put forward hislittle brother at the end of the case to say that this little boy saw thestep-mother (the petitioner) taking the deceased’s things, includingsome papers, and sent them away through her brother. I have nohesitation in finding that this belated attempt on the part of the seventhrespondent to rebut a presumption created by law is a false move.
His experience, though short, in the police force of this Island,however, was helpful to him when he conducted his case in person, andhe produced the evidence which He thought was necessary to meet thecase. I reject this little boy’s evidence altogether. It is very strangethat this little fellow, after the evidence was led by his brother the firstday, and when his brother was waiting in Court after the Court adjourned,went to his brother and gave him just the evidence which was wanting.I am of opinion that this little boy was well schooled by the seventhrespondent.
I accept the evidence of the petitioner that she did not know of theexistence of any will till after her husband's death, when she was informedby the seventh respondent, and that she did not take any papers of herhusband.
It is well settled law that if a will was executed in-duplicate, and thetestator had the custody of one part and it cannot be found after hisdeath, the presumption of law is that he destroyed it animo revocandi,and both parts are consequently to be considered to be revoked unlesssuch presumption is rebutted. There is no evidence to rebut thatpresumption which the law creates. It is possible that deceased felt‘ that the devises in the original will wore not equitable or just, as he haddisposed of some of the properties originally mentioned in the will, andleft some of the children without anything at alL Whatever that maybe, I find that the presumption of law as to the revocation has not beenrebutted. The deceased died intestate, and the petitioner, as thewidow, is entitled to letters of administration. As to costs of thisinquiry, I order that the costs, both pf the petitioner and of the res-pondents, be paid out of the estate.
SamarawicJcreme, for the appellants.
Drieberg• K. C. (with him Croos-Dabrera), for respondents.
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July 4, 1921. Bertram C.J.—1921.
The question for consideration in this case is whether a will, a copy Attapattu v.of which was produced from a notary’s office in protocol, and which Jayawardenewas undoubtedly made by the testator, was revoked before his death.
The will was said not to be found in the testator’s possession oranywhere else at the time of his death, and those who propoundthe will have to have recourse to the protocol in the notary’s office.
The question is, therefore, what has become of the will ? Now,it is an accepted principle of the law that if a will is made by atestator, and is shown to have been in his possession and is not forth-coming at his death, it is presumed to have been destroyed animorevocandi. That is laid down in several cases, of which the followingmay be cited :Welsh v, Phillips,1 Allan v. Morrison2 Sugden v, the
Lord of St, Leonards? Mr. Samarawickreme, who appeared for theappellants, entirely accepts that principle, but contends that inthis case it has no application, because there is no positive proofthat the will was ever retained in the custody of the deceased.
We must approach this case by stages. The first question is:
Is it shown that the will could not be found at the datfe of thedeceased’s death ? It is a necessary condition to the coming intoefEect of the presumption that the Court should be satisfied that thewill was not in existence at the time of the death (see Finch v. Finch 4).
The onus of this is on those who assert it. It must be borne in mindin this connection that there is a presumption against the hypothesisof a fraudulent abstraction (see AUan v. Morrison2), In Finch v.
Finch 4 without positively finding that there was such an abstraction,in view of the suspicious conduct of the defendant and the othercircumstances of the case, the Court expressed itself as not satisfiedthat the will was not in existence at the time of the death. In thepresent case there is nothing which would justify us in coming to sucha conclusion. We must take it, therefore, that at the date ofthe death of the deceased the will could not be found in hiscustody.
. The next question is: Had the will been in his possession?
Mr. Samarawickreme says that it must be shown by positiveevidence that the document was in the actual custody of the deceased.
There is no express authority for that proposition. There is thisto be said, that in all the cases which he has brought before us therewas such positive evidence. In this case that positive evidenceis wanting, because the professional man who drew the will, and whopresumably handed over the will to the testator, has died in theinterval, but it is open to the Court to draw an inference from thenature of the case. In this case we have the fact that the will wasexecuted in duplicate, but that one copy was retained by the notary.
The only inference in the circumstances of the case is that the other
1 (1836) 1 Moore P, C. 299,® (1876) 1 Probate Div. 164,
* (1900) 10 A. 0. 604,4 (1867) 1 Probate and Divorce 371.
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1921* was handed over to the custody of the testator. I fail to see thatBertram any distinction could logically be drawn between a case in whichC.J. possession by the testator is positively proved and a case in whichBU°k possession is inferred from the circumstances of the case. I‘dene take it, therefore, that we must hold that the will, after having beenexecuted, was in the possession of the testator.
Now, if that is held, there follows the presumption above'explained. That presumption is, no doubt, not a very strong one.It is weakened by two circumstances, one is that, though the protocolwas allowed to remain in the possession of the notary, no intimationappears to have been conveyed to him that the will had been revoked.At any rate, no application appears to have been made for the returnof the protocol. It is further weakened by the circumstance thatwe do not know what was the actual character of the custodyof the deceased. But, nevertheless, on the facts above foundthere undoubtedly is a presumption in favour of a revocation.We must then ask ourselves, has that presumption beenrebutted ? It is unnecessary to ask whether the will wasfraudulently abstracted.' That is a matter We have already dealtwith. In many of the cases the most important ciroumstanceconsidered has been the intention of the testator. Was. it likelythat the intention of the testator had altered ? If it is shown thatthere is every reasbn to believe that the testator’s intention, when hemade the will continued to his death, that is a strong circumstanceagainst the hypothesis of revocation, but in this case we have verystrong circumstances tending to show that it was likely that deceasedrevoked the will. When he made the will, he had four properties.When he died, two of these had already been disposed of. It isproved in evidence that he intended to dispose of a third of theseproperties. His intention was interrupted by his death. Had hecarried out that intention, only one property would have been left,and that was the property devised to the seventh respondent. Itseems, clear, therefore, that the circumstances of the deceased hadwholly altered, and that if the will is upheld it will not give effect tothe intention which he had when he first executed it. There wasevery reason, therefore, for his destroying the will. There is someforce in what Mr. Samarawickreme says, that one might haveexpected a man in his position to make a new will before disposingof the old, but, on the other hand, there is equal force in the suggestionthat he may have decided to destroy the will and leave hisproperty to devolve in the ordinary course. The learned DistrictJudge had, in fact, come to this conclusion, and I do not think thatsufficient evidence has been led before us to vary this conclusion.
The appeal should be dismissed, with costs*
En&is J.—1 agree.
ATTAPATTU v. JAYAWARDENE et al