A. JANE ELIAS, Appellant, and S. C. JOSEPH, Respondent

141-NLR-NLR-V-60-A.-JANE-ELIAS-Appellant-and-S.-C.-JOSEPH-Respondent.pdf


566
PULLE, J.—EUas «. Joseph
1956’ Present: Pulle, J., and Sansonl, J.A. JANE ELIAS, Appellant, and S. C. JOSEPH, RespondentJS. G. 6—D. G. Badulla, 1,2631D
Will—Revocation tn/ destruction—Quantum of evidence.
Where the question for determination is whether a testator destroyed his lastwill with the intention of revoking it, proof of intention to revoke the willhas an important bearing on the factual issue whether the will was destroyedafter the intention was formed.
A
1 * PPEAL from a judgment of the District Court, Badulla.
N. E. Weerasooria, Q.O., with W. D. Gunasekera, for the Respondent-Appellant.
H. V. Perera, Q.C., with S. ,/. Kadirgamur and B. S. C. Ratwatte.. forthe Petitioner-Respondent.
Cur. adv. null.
May 30, 1956. Pulle, J.—
The appellant, Adelaide Jane Elias, is the widow of one Theodore EdwardElias who died on the 19th June, 1952. He was then about 86 years old.He executed a last will on 2nd January. 1942, by which he bequeathedall his property, movable as well as immovable, to the respondentto this appeal, Samuel Christopher Joseph, subject to a life interest infavour of the widow. He was also appointed the executor of the will.On 26th September, 1952, Samuel Christopher Joseph, who will be referredto hereinafter as the petitioner, filed an application to have the will provedand alleged, inter alia, that it was in the custody of the widow and thatshe had refused to deliver it to the petitioner. The will had been executedin the presence of a notary and two witnesses. The copy marked PI Irequired by law to be kept by the notary was produced and the learnodDistrict Judge has pronounced in its favour. Tho substantial pointwhich arose for determination was whether the testator destroyed thewill with the intention of revoking it. The Judge’s finding is that thewill had not been destroyed but was in existence after the death of thedeceased. The widow’s submission in appeal is that, having regardto the evidence, the finding in favour of the petitioner cannot besupported.
The testator had no children by his marriage. He was, however,said to be the father of three illegitimate sons, namely the petitioner and.two others named Francis Joseph and Benjamin Joseph. They were
PULLE, J.—Mias v. Joseph
567
educated by him and brought up in his own home. They regarded himand his wife as their parents. In 1932 the testator and his wife madethe joint will marked R3 by which they bequeathed to the survivor ofthem the entire estate. On the very day the testator made his will in1942 his wife too made a will R4 on the same lines as his, namely, shebequeathed to the petitioner all her properties, subject to a life interestin her husband’s favour. Both wills purported to revoke previouswritings of a testamentary nature.
The principal asset of the testator’s estate was a land called “ Sunny-side ” in extent seven acres with a commodious house and annexe valuedby the petitioner at Rs. 13,500. It was probably worth three timesthat sum. The rest of the estate consisted of movables valued at aboutRs. 2,000.
The eventual destination of the whole of “ Sunnyside ” was the causeof some bitterness, especially between the petitioner and his brotherBenjamin Joseph in the years which intervened between the makingof the 1942 wall and the testator’s death. Strangely enough Benjaminwho earned quite a number of uncomplimentary epithets from the peti-tioner, as could be gathered from the latter’s correspondence with thetestator, gave evidence for the petitioner and testified to his having beenshown the original of the will by the brother-in-law of the testator, thewitness Clancy de Silva, on the very day of his death. The learnedJudge after dealing with certain aspects of the evidence adduced by thewidow on whom the burden was placed of proving that the testator haddestroyed the will stated :
“ In conflict with the evidence of the respondent (i.e. the widow)and Clancy de Silva, there is the evidence of Benjamin Joseph. Hesays that he saw the original of X (X being a copy of the will) afterthe deceased’s death and relates the circumstances in which Clancy deSilva showed it to him. His evidence was convincing and I accept it. ’
He further expressed the opinion that it was after the petitioner madethe application for probate that the widow had been persuaded to saythat the original had been destroyed.
It has been submitted to us that the Judge in coming to these findingshas overlooked, if not ignored, a convincing body of oral and documentaryevidence pointing to the contrary.
The petitioner who did not give evidence has in effect alleged—andsucceeded in satisfying the court—that the widow and Clancy de Silvahad, in pursuance of a conspiracy, secreted or destroyed the will whichwas among the papers of the testator. This indeed is a serious allegationand one has to see whether the intrinsic merits in the evidence of BenjaminJoseph are of such a character as to turn the scales against the widowand Clancy de Silva.
9
While it is apparent from the letters written by the petitioner to thetestator that there were disagreements concerning a property at HaliEla and Benjamin Joseph’s occupation of the annexe at “ Sunnyside ”
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PULLE, J.—Elias v. Joseph
^here is.nothing in them to indicate that the feelings between the petitionerand the testator’s wife were anything but cordial. It is true that atthe beginning she disliked the testator adopting the petitioner and hisbrothers in her home but one sees that in the will she made in 1942 shebequeathed her properties to the petitioner and it is difficult to understandwhy she should later adopt a hostile attitude towards him. As to Clancyde Silva the petitioner in his letters R25 of the 17th July, 1948, and R13of 27th April, 1948, pays a tribute to the excellence of his character. InR13 he refers to a brother-in-law of the testator one Mr. C. H.Bartholomeusz in these terms :
“ I have great regard for him. He is the only man among yourrelatives (with the exception of Mr. Clancy de Silva) who will not allowtheir sense of justice to be perverted or influenced by ties of kinship.”In view of this it is only fair by these two witnesses that cogent reasonought to be adduced why on a conflict of evidence the testimony ofBenjamin Joseph ought to be preferred.
A perusal in particular of the letter R20 of 14th August, 1949, writtenby the petitioner to the testator reveals his estimate of the character ofBenjamin Joseph. In that he accuses him of poisoning by deviousmeans the confidence which existed between him and the testator andof distorting the truth. Referring to Francis and Benjamin the peti-tioner states,
“ I agreed to become an executor for the sake of Francis and Benso that another executor may not deprive them of their share. Theresult was that they conspired to shed my innocent blood.”
One can, therefore, well understand why the petitioner who was welleducated and held the responsible position of the principal of a schoolrefrained from entering the witness box. He would certainty have beenin difficulties had he chosen to state on oath that the widow and Clancy doSilva were unworthy of credit and that on the contrary Benjamin whomhe regarded as a mischief maker could be expected to speak the truth.
There is one aspect of the evidence which has an important bearingon the central issue on which this case was contested in the DistrictCourt and before us, namely, whether the testator had destroyed the wall.The testator was buried on 21st June, 1952. In about a week the widowwas arranging to consult a Proctor, Mr. Joseph Pieris. Benjamin ivasemployed at a Motor Service Station of which the Managing Directorwas Mr. Pieris. About 29th June Benjamin and Clancy de Silva sawMr. Pieris regarding the drafting of a will for the widow. He went to herhouse on the 1st July and took instructions for drawing up her will whichwas eventually executed in Ms presence on the 4 th July. That is thedocument R8. He also obtained instructions to prove the 1932 will.Benjamin was not present at the execution of R8 or at the consultationon 1st July.
The evidence of Mr. Pieris is clear that on the 1st July the widow'stated to him that the testator had recalled the will which was admittedly
PX7LLE, J.—Elias v. Joseph
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in the custody of the petitioner and destroyed it afterwards and thatClancy de Silva discussed with him the position arising ouf of the wilibeing destroyed. Further, Mr. Pieris 'said in his evidence,
“I met the petitioner casually on the road after I had drawn up therespondent’s will E8 and told him that Mr. de Silva had mentioneda will in his favour whioh had been destroyed and asked whether he hadthe will with him. He said that the deceased had taken that will backfrom him. I wanted to be certain myself whether Mr. Clancy de Silvahad spoken the truth when he said that the deceased had destroyed the
willI questioned the petitioner as I wanted to be quite
certain.”
The opinion expressed by the learned Judge that after the petitionerapplied to have the 1942 will proved, which was in September, 1952,
. the widow had been persuaded to say that the original had been destroyedcannot be supported having regard to the evidence of Mr. Pieris who wasa perfectly disinterested witness. So also the adverse comment by theJudge that a letter R7 written by the widow on the 23rd July, 1952, tothe petitioner, while referring to the fact that the testator had recalledthe will as he had made up his mind to “ scrap it ” omitted to state thathe had destroyed it, cannot be justified as a ground for suspecting thatthe story of the destruction was invented after the petitioner moved tohave the will proved.
According to Benjamin the will was shown to him by Clancy de Silvaon the very day the deceased died and he mentioned this fact to the peti-tioner on the 10th July when the latter came on a visit to “ SunnysideIt is purely a matter for comment that when the petitioner wrote to Clancyde Silva the letter P8 of 1st September, 1952, in which he, protestedagainst the steps taken by the widow to prove the will of 1932 he didnot tell Clancy de Silva that Benjamin had conveyed to him the infor-mation that the will was shown to him after the testator’s death.
The widow states that about a month after the death of the testatorthe petitioner called at her house and she told him that the will had beendestroyed and that it was not with her. The petitioner had not chosento contradict this evidence with his own nor did he choose to supportBenjamin’s statement that he informed him on the 10th July that Clancyde Silva had shown him the will.
That the testator had an intention for drawing up a new will is evidentfrom some of the letters written by the petitioner. It is positively statedin a letter written by the testator on the 9th August, 1949, and whichis quoted by the petitioner in It20 of 14th August, 1949. At this timeall the affairs of the testator appear to have been in a state of indecisionand turmoil. The efforts of the petitioner to ensure that “ Sunnyside ”came to him as a gift before death or under the will appear, from his pointo£ view, to have failed. There is a break in the correspondence for inAugust, 1950, the petitioner complains that the testator had not repliedto three successive letters. There is no evidence that any letters passedbetween August, 1950, and June, 1952.
570T. S. FERNANDO, J.—Charles Baglin Ltd. v. Letchwmanan
It is tnie that proof of intention alone to revoke a will does not sufficebut such proof could have an important bearing on the factual issuewhether it was destroyed after the intention was formed. The learnedJudge has chosen to believe the evidence of Benjamin in preference tothat of the widow and Clancy de Silva for reasons which do not commendthemselves to us. On the contrary there are stronger reasons for holdingthat the testator had destroyed the 1942 will. The order under appealis set aside and the case is remitted with the finding of this court thatthe last will No. 6544 of 2nd January, 1942, was destroyed by the testatorwith the intention of revoking it. The petitioner will pay to the appellantthe costs here and below.
Sansoni, J.—I agree.
Order set aside.