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Present: Lascelles C.J. and Middleton J.MANCB3EAMY v. ABEYASEKEBA et al.
176—D. C. (Inty.) Galle, 4,057.Last will in the custody of testator—Witt missing at death—Presumptionthat will was destroyed animo revocandi—Presumption may berebutted.
Where a will is traced to the custody of a testator aud cannotbe found at his death, the presumption is that be destroyedit himself; but this presumption may be rebntted by evidenceleading to a contrary conclusion, as by a declaration of good willtowards the parties benefited by the will, or of an adherence to thewill.
fjl HE facts are set out in the judgment.
Bawa, for the appellants.
Sampayo, K.C., for the respondent.
Cut. adv. vult.December 8, 1911. Lascelles C.J.—
This is an appeal from an order of the District Court ofGalle declaring the petitioner to be entitled to take out letters ofadministration to the estate of her deceased husband, Don Johannes.Abeysena, Arachehi, who died on May 13, 1911.
The appellants are the first and second respondents to thepetition, who are the sons of the deceased.
It appears that the deceased, who had lived apart from his wifefor many years, had an illegitimate daughter, Carlina by name,who was being brought up at Buona Vista Orphanage. On August'30, 1911, Miss La Brooy, the Lady Superintendent of the Orphanage,,filed a petition in the District Court, the substance of which is‘more-fully stated in Miss La Brooy’s evidence in these proceedings.
Miss La Broov, whose evidence is accepted by both parties,stated that the deceased came to the Orphanage on April 23; thathe stated that his doctors had given time only three months to live;that he entrusted to Miss La Brooy, for the use of his daughter, apacket of jewellery, and a “ receipt ” on which he thought Bs. 53,344 -could be recovered from a debtor for his daughter; that he saidthat he distrusted* his sons and had made a will leaving some landedproperty to Carlina; that he wished to leave something more to-her, and to make another will for that purpose. -It was proved by Notary Seneviratne that on April 6, 1905, awill was duly executed by the deceased, and tEe notary producedhis instructions, which show clearly the purport of the will. By the
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will all the movable property of the deceased and the bulk of theimmovable property were left to the deceased’s two sons (theappellants), on whom was imposed the duty of educating Carlinaand also two grandchildren of the deceased. The soil and fruittrees of one parcel of land were devised to Carlina.
The will was taken away by the deceased, and was not forth-coming at the time of his death. The question is whether, in thecircumstances, the deceased must be taken to have destroyedthe will with the intention of revoking it.
In the argument we were referred to the leading cases on thesubject, including Sugden v. Lord St. Leonards,,1 James v. Shrimp-ton* Harris v. Knight* By these and other authorities the rule iswell settled that where a will is traced to the custody of a testatorand cannot be found at his death, the presumption is that he des-troyed it himself; but this presumption may be rebutted by evidenceleading to a contrary conclusion, as by a declaration of good willtowards the parties benefited by the will, or of an adherence tothe will. Williams on Executors (9th ed.), vol. p. 134.
From the evidence it is clear that the deceased, so. far frommanifesting an intention to adhere to the will, made statements toMiss La Brooy which point to an intention to make a new will,rather than to adhere to his previous wiil. He stated in terms' thathe intended to make a new will making better provision forCarlina; that he distrusted his sons, to whom by his former will hebad confided the case of Carlina and his grandchildren.
It appears from the evidence of the first appellant that threeor four days before the deceased’s death instructions were givento prepare a new will, and that a draft will was prepared byMr. de Vos. It is to be regretted that fuller inquiry was not madeas to whether the deceased at this date himself gave any andwhat instructions for the preparation of a new will.
But the evidence on this part of the case, so far as it goes,confirms the inference, which is deducible from the deceased’s^statement to Miss La Brooy, that the deceased was dissatisfied withhis former will and intended making another.
There is no evidence to support the suggestion that the will wasmade away with by a former mistress of the deceased, who is said tohave stolen other papers of the deceased.
In my opinion the evidence adduced has not been rebutted, buthas rather strengthened the presumption that the deceased destroyedthe will animo revocandi, and I think that the District Judge, onthe evidence before him, was right in dealing with the case on thefooting of an intestacy.
I would dismiss the appeal with costs.
Middleton J.—I agree.
Appeal dismissed.t 1 P. D. 154.2 1 P. D. 431.* 15 P. D. 170.
MANCHIHAMY v. ABEYASEKERA et al