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April. i-J,Present : Lascellcs C.J. and Grenier J.
In re the Last Will and Testament of Duncan Young.JANE YOUNG r. LOK.U NONA el al.
344—D. C. Kandy, 2,742.
bequests hi/ testator to woman with whom he. was Imnff in adultery—Validity—Undue influence—Costs.
A hequest by a testator to a married woman with whom lie wasliving in adultery is valid.
N this case the petitioner-respondent (who was executor under thewill) sought to obtain probate of the last will and testament of
one Peter Duncan Young, who had died on October 23, 1909. Theappellant, the only sister of the deceased, and one of the heirsin the event of the intestacy, opposed the granting of probate onseveral grounds.
At the trial the second respondent (Loku Nona), the sole heiressunder the will, was added as a party respondent at the instance ofthe Court, the learned District Judge being of opinion that it wasadvisable that she should be added in order that she might safeguardher interests.
The facts material to this report are set out in the followingportion of the judgment of the learned District Judge (F. R. Dias,Esq.)
“ There is no difficulty us regards the first two questions, because itis admitted that Loku Nona was lawfully married to Don James, whois atilt alive, and from whom she has not been legally divorced, and thatshe was living with Air. Young in his bungalow as his mistress at leastsince May, 1, 1908, and up to his death. The third issue is a pure issuoat law, a-s to which also there is no difliculty, for it is covered byauthority. If we aro governed by the Roman-Dutch law, puro andsimple, there ean.be no question that this bequest is bad. The generalfleet fine of that, system of law opposes to adultery so strong, areprobation, that once adultery has been committed tliero results to theguilty parties an incapacity ever to marry ono another or to takotestamentary gifts from one another. Before we adopt this principle,however, wo must pause and inquire whether the conditions under whichwe live are the same as those in regard to which alone that law wasapplicable. As we all know, under the Roman-Dutch law adulterywas a crime, and a union between parties guilty of it was prohibited.Hut under our law, adultery, unliko incest, is not a criminal offence,nor is it prohibited by law, and after the dissolution of the marriagewhich made the relationship adulterous, the parties may oven marry.(Vide Karonchihomy v. Anyohmny.') Section 31 of Ordinance No. 6 of
(/SOI) S iV.L. It. 1.
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1847, recognizes the marriage of adulterers ns valid, and it has been so April I2,l9llheld by our Supreme Court in the same rase above cited, and also by~
the l’rivy Council in the recent case of Robot i S/lm.' .Hence, in 'view of the fact that the living law of Ceylon recognizes the marriage of Nonaadulterers and the validity of testamentary gifts from one to the other,it is no longer possible to contend that such persons living in thiscountry suffer from any of the disabilities imposed on t-lieiu by thellomon-Dutch law.
“ The only difference between the case Inst- cited and the present oneis, that in the former the testator married the woman with whom lie hailbeen living in adultery after she became a widow, while Mr. Young hadnot married Loku Nona. That, however, is not an element which has -in any way influenced the decisions regarding the principle. Applyingthe same reasoning which was applied both by the Supreme Court- andby the Privy Council in their decision, that the Homan Dutch law nolonger applied to the question of marriages between persons who hadlived in adultery, because adultery was not an offence in this country,it must, be similarly held that testamentary gifts made by and botweonsuch parties are no longer obnoxious to our law. The one was anecessary corollary to the other.”
The learned District Judge declared the will proved.
The caveator appealed.
Dana (with him Elliott), for the executor*respondent, took thepreliminary objection that the appellant had no interest in Young’sestate, whether the will was held proved or not. If the present willwas held to be invalid the will of 1908 would revive ; under thatwill the appellant took nothing. To object to a will, a person musthave some interest in the estate. This objection was ruled out bythe District Judge as having been taken at too late a stage of thecase. (Lascelles C.J.—It is not necessary to entertain the objectionat this stage. If in the course of the argument it becomes necessaryit will receive our attention.)
Sampayo, K.C. (with him (//. J. C. Pereira)), for the appellant.—The will was bad by reason of the undue influence exercised byLoku Nona. Counsel cited Mountain v. Bennett,2 Mars v. Tyroll,:!Tyrrell v. Pain ton,' Wingrove v. Wingrove.*
Under the Roman-Dutch law a person cannot bequeath anythingto a person with whom he was living in adultery. The case ofRobot v. Silva1 is no authority for the proposition that under thepresent law of Ceylon such bequests are valid. All that was decidedthere was that parties who had lived in adultery are not incapacitatedunder the present law from marrying one another. Once the partiesare married there is no law which would prohibit .bequests between 1
1 [1907) 12 A". L. R. SI.;i 2 Haggard's Reports Si (page 87).
} 1 Cox 353 ; English and Irish.' [1891) Probate t51.
Cases 418, at page 460.511 Probate 81.
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Apriil2,wu husband and wife. Rabot v. Silva is no authority in the present-■case, as Young had not married Loku Nona.
/•. iMaStma The District Judge was wrong in ordering the caveator to paythe petitioner’s costs. The will was quite unexpected ; the caveatorhad sufficient grounds to put the petitioner to the proof of the willby her opposition. Orton v. Smithy Wilson v. Basill.'1
Bawa, for the executor.—Adultery is no longer a crime under ourlaw. The reason for making the bequest invalid under the Roman-Dutch law does not exist now. Rabot v. Silva is a direct authorityin favour of the respondent. Counsel also referred to SendrisAppu v. Santakahamy? Rabot v. Silva,4 Karonchihamy v. AngohamyJ'
The Supreme Court has often held that an order as to costs shouldnot be varied in appeal, except for very grave reasons. See TheGovernment Agent of Uva v. Banda.* Counsel also referred toWilliams on Executors, 10 eel., pp. 247 and 286 ; Peris Will Case.1
Labrooy (with him Molamure), for the second respondent (legatee),cited Sendris Appu v. Santakahamy.8
Sampayo, K.C., in reply.—Adultery was a crime under the Roman-Dutch law, and two consequences flowed from it: one was personal—marriage between the parties was forbidden ; the other related toproperty—bequest by one to the other was rendered invalid. Thesetwo consequences were independent of each other. In Rabot v.Silva11 the Privy Council only declared that the marriage betweenthe parties was valid. Counsel also referred to Davies v. Gregory,10
Cur. adv. vult.
April 12, 1911. Lascelles C.J.—
This is an appeal from a judgment of the District Court of Kandymaking absolute an order nisi declaring the will of the late Mr. P. D.Young to be proved. .
The first of the six issues with regard to which any question nowarises is whether Loku Nona, who is the sole beneficiary under thewill, is entitled in law to take under the will.
The question involved is whether Loku Nona is incapacitatedfrom taking under the will by the rule of the Roman-Dutch law,which prohibits bequests by a man to a woman with whom he haslived-in adultery. – In my opinion the question is concluded byprevious decisions of this Court. In Karonchihamy k Angohamy*the question was whether it was illegal in Ceylon for a man who hadlived in adultery with a woman during the lifetime of his wife to
*3 Probate and Divorce 23.
(1903) Probate. 239.
(1910) 13 A L. It. 237.
(1905) 8 N. L. R. 82 : (1907)
10 N. L. R. 140.
5 (1904) 8 N. L. R. 1.
*(1910) 13 N. L. R. 341.
: (1906 9 N. L. R. 14, at page 25.
" (1910) 13 N. L. R. 237,at page 2400 (1909) 12 N. L. R. 82.
10 3 Probale and Divorce 28.
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marry such woman after the death of his wife. It was there decided A11
chat the rule forbidding such marriages was no part of the law or lasi-elms*.Ceylon.
In Robot v. Silva1 a bequest to a woman with whom the testator jn„e Younghad previously lived in adultery was upheld by the Full Court. i^luHutchinson C.J., quoting from Voet 34, 9, 3, pointed out the '1
principle on which the prohibition was based. Under the Roman-Dutch law the bequest was bad even if the testator married thewoman, but that was because ipsum matrimonium ob proecedemadulterium invalidum pronunciatur, a rule which it was decided inKaronchihamy v. Angohamy has no application in Ceylon. Wendt J.in the same case held that the prohibition depended upon thepeculiar reprobation with which the law regarded such a connection,and when that view of the law was so far modified as to permit of alawful marriage being contracted between the guilty parties, theprohibition disappeared.
Tn the Privy Council the judgment proceeded .upon somewhatdifferent giounds, and it may be contended that the judgment applies' only in cases where a valid marriage-had been subsequently con-tracted between the persons who had lived in adultery. But thelanguage of the last paragraph of the judgment, in my opinion,goes further, and supports the view taken in the Ceylon Courts, thatthe Roman-Dutch rule with regard to the effects of adultery is notauthoritative in Ceylon. Whether or not this be the constructionof the judgment of the Privy Council, the decision in this Courtof Robot v. Silva is unaffected, and is conclusive of the present..question. The third issue must therefore be answered in theaffirmative.
His Lordship dealt with the other issues, and continued :—
With regard to the issue of “ undue influence,” the appellantcontended that Loku Nona had acquired an influence over thetestator of the character described in Mountain v. Bennett? namely,a dominion acquired by any person “ over a mind of sufficient-sanityto general purposes and of sufficient soundness and discretion toregulate his affairs in general,” which nevertheless- prevented theexercise of such discretion.
Now, throughout the case there is no evidence that Loku Nonaexercised any dominion or ascendency over the mind of the testator,or that he acted otherwise than as a free agent either in the ordinaryaffairs of his life or in the execution of this will. We are asked toinfer the existence of such an influence from the fact that the willnow propounded does not contain the legacies to friends and charitieswhich appeared in the wills which the testator made in 1904, 1906,and 1908 ; from the part which the testator and Loku Nona took inrepelling Mr. Scott’s well-intentioned, but entirely unlawful, attempt1 (1901) 10 N. L. R. 142.* 1 Cox. 255.
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Apriii'2,if)li to remove him forcibly from his estate in January, 1909 ; from thedislike which the testator evinced to Mr. Gourlay, when the latterC J- came to the estate in April, 1908 ; and from similar circumstances.
Jane Yomnj An explanation of each of these circumstances, if indeed they callf°r any explanation at all, can readily be given. The plea of unduen influence fails entirely in my opinion, I can find no evidencewhatever that Loku Nona exercised any influence whatever over theTestator in business matters.
The only other point which remains for consideration is that ofcosts. The learned District Judge was of opinion that the oppositionhad been most rashly embarked upon and most rashly persisted in,and he condemned the caveator 'to pay the petitioner and theadded respondent all their costs consequent on the opposition.
1 think that this decision is too hard on the caveator. Tt mustbe admitted that the circumstances under which this will was made,the relations between the testator and the beneficiary, the intem-perate habits of the testator, and the conduct of the attestingnotary, afforded ground for reasonable suspicion with regard tothe due execution of the will. On the other hand, the plea of
undue influence ” was advanced and persisted in without justi-fication. Witnesses were cross-examined and examined at enormouslength on the chance of eliciting something in support of this plea,with the result that the trial has been unduly protracted and veryheavy costs have been incurred, f think that, the caveator mayfairly be relieved of the order to pay the costs of the petitioner andthe added respondent, but 1 do not think that it would be properto direct her costs to be paid out of the estate. In this connectionit is material that her interest in opposing the will is remote. Itwould appear to depend upon the double contingency of probatebeing refused to the present will, and of the will of 1908 beinglawfully revoked.
– In the result the judgment of the District Court is confirmed,except so far as it orders the caveator to pay the costs of thepetitioner and of the added respondent.
I have had the advantage of reading the judgment of my lord,and as I am in complete agreement with him on all the pointsdiscussed in it, it is heedless to go over the ground already covered.I agree to affirm the judgment of the Court below, and 1 also agreeto the order as to the costs of the caveator.
JANE YOUNG v. LOKU NONA et al