133-NLR-NLR-V-14-APPUHAMY-v.-PERERA-et-al.pdf
( 467 )
Present: Lascelles CJ. and Middleton J.APPUHAMY i-. PERERA et al.
128—D. C. Kurunegala, 1,017.
Codicil—Revocation of will by destroying it—Is codicil also revoked f—Ordinance No. 7 of 1840, s. 5.
A testator intended to revoke both his will and' codicil, but bymistake or ignorance destroyed only the will.
Held, that the codicil was not revoked.
Lascelles C. J.—Testamentary instruments can be revoked onlyin the ways prescribed in section 5 of Ordinance No. 7 of 1840 ;it is not open to us to hold that testamentary instruments can berevoked by implication.
T
HE facts are stated fully in the judgment of Lascelles CJ., asfollows:—
“ Th’is is an appeal from a decree “of the District Judge ofKurunegala admitting to probate a codicil to the will of MellowaArachchige Carolis Perera Appuhamy of Katuwellagama.
“ The deceased executed a will on November 20, 1906, and on .November 22 of the same year a codicil, in which he varied theterms of the will by increasing the share of the sons. Both thewill and the codicil were prepared and attested by the DunagahaNotary (Seneviratne), whose warrant to practise as a notary hassince been cancelled.. The testator died on September 8, 1910,but neither will nor codicil was found amongst his papers. OnOctober 10 Jiilis, the executor of the will, applied for probate,stating in his petition that the testator had left the will and codicilwith Dunagaha Notary, who refused to deliver them to him. Thenotary, when examined on November 13, stated that after executingthe will and codicil, the testator had left them in his office for abouta month, and that the testator had consulted him about revokingthe will, and that he had advised the testator either to tear up thewill or to write another one.
“ On February 28, 1911, when the case came on for inquiry, theapplicant produced the original codicil, stating that he had receivedit from the notary on payment of Rs. 250. The learned DistrictJudge disbelieves this, but I must confess that I regard the conductof the notary with the greatest suspicion.
“ The respondents produced evidence that the testator formallytore up the will in the presence of his daughters, and others. Butthe learned District Judge rejects this evidence, which is almostcertainly false.”
Oct. 6,1911
Appuhamyv. Perera
( 468 )
On the evidence the learned District Judge (Bertram Hill, Esq.)held :—
I find on the evidence that the will was in the possession of thetestator, and that it was not forthcoming at his death. The presump-tion is that he destroyed it. I think it is very probable that thedeceased did wish to revoke both the will and the codicil, but bymistake or ignorance only destroyed one of these documents. If thewill had been in existence, it seems to me very probable that it wouldhave ben found as the codicil was found. _
I find them on the issue that the last will was revoked, but thecodicil was not revoked.
I see no reason why the codicil should not be admitted to probate.It is an independent document, and its provisions can be carried outapart from those of the will. I make order accordingly, and orderletters of administration with the codicil annexed to issue to theapplicant, the eldest son of the deceased.
The second respondent appealed.
Elliott, for the appellant*—The District Judge holds that the willwas destroyed ammo revocandi. The codicil must, therefore, beheld to have been revoked ; it is a necessary consequence of therevocation of the will. Counsel cited Grimwood v. Cozens,l Inthe Goods of Bleckley ,2
H. A. Jayewardene (with hinM. St. V. Jayewardene and Molamure)for the respondent.—A revocation of the will does not amount torevocation of the codicil. A codicil , can only be revoked in themanner set out in section 5 of Ordinance No. 7 of 1840. Black v.Jobling,3 In the Goods of Savage* Gardiner v. Courthope*
Elliott, in reply.
Cur. adv. vult.
October 6, 1911. Lascelles C.J.— .
His Lordship set out the facts, and continued :—
The findings of the learned District Judge on the evidence are(I) that the will was in the possession of the testator ; (2) that itwas not forthcoming at this death ; (3) that the presumption is thatthe testator destroyed the will ; (4) that is is probable, that thetestator wished to revoke both the will and the codicil, but bymistake or ignorance he destroyed only the will.
I am not prepared to hold the findings are erroneous, though thefinding as regards the. intention of the testator, resting as it doeson the almost uncorroborated evidence of the notary, is far fromconvincing.
The suggestion of Mr. Jayewardene that the notary sold the willto the daughters and the codicil to the applicant, as the applicant
1 Sv>. db Tr. 364.3 J P. db D. 686.
8 P.dbD. 169.4 2 P. db D. 78, 403.
6 1Z P. d! D. 14.
( 469 )
has sworn that he did, is far from improbable. Accepting theverdict of the District Judge, the question for decision is whetheron these findings the codicil was effectually revoked.
Mr. H. Jayewardene, for the respondents, rested his case onsection 5 of Ordinance No. 7 of 1840, which does not differ materiallyfrom section 20 of the Wills Act.1 The section of our Ordinance isas follows : “ No will, testament, or codicil, or any part thereof,shall be revoked otherwise than by the marriage of the testator ortestatrix, or by another will, testament, or codicil executed inmanner hereinbefore required, or by some writing declaring anintention to revoke the same, and executed in the manner in whicha will, testament, or codicil is hereinbefore required 'to be executed,or by the burning, tearing, or otherwise destroying the same bythe testator or testatrix, or by some person in his or her presence,and by his or her direction, with the intention of revoking thesame.”
Mr. Jayewardene contends that whatever may have been theintention of the testator as regards revoking the codicil, thatinstrument was not revoked in law, inasmuch as it was not revokedin any of the ways enumerated in section 5 of Ordinance No. 7 of1840, as the only means which the law allows for the revocation oftestamentary instruments.
Mr. Elliott, on the other hand, contended that the codicil wasdependent on, and subordinate to, the will; that the will has beenfound to have been destroyed animo revocandi; that an intentionto revoke the codicil as well as the will may be inferred from thenotary’s evidence ; and that the revocation of the will carried withit as a necessary consequence the revocation of'the codicil.
The case is thus in its essential particulars, the same as thatdiscussed by Lord Penzance in Black v. Joblingr
The question is in substance whether the distinct and positiveenactment of section 5 of Ordinance No. 7 of 1840 is to be giveneffect to, or whether the revocation of codicils is governed by thelaw which prevailed in England before the passing of the WillsAct, and has been acted on in one or two cases after the passing ofthat Act.
Lord Penzance, in Black v. Jobling,- had no hesitation in holdingthat the intention of section 20 of the Wills Act (corresponding tosection 5 of Ordinance No. 7 of 1840) was “ to do away with impliedrevocation, and relieve the subject from the doubt and indistinctnessin which the cases had involved it.” He also discussed the casesof Clogstown v. Walcott and others* and Grimwood v. Cozens andothers,4 both decided after the Wills Act, and came to the conclusionthat in these cases the effect of the Statute of Wijls had not beenfully discussed.
1 Via. e. 26.3 5 .V. C. 623.
1 IP. & D. 685.' 2 Sw. de Tr. 364.
Oa. 6,1911
Lasueli.es
C.J.
Appahamy». Pe.rcra
( 470 )
Oct. 6, 1911
Lasgelles
C.J.
Appuhamyv. Perera
In In the Goods of Savage,a Lord Penzance followed his previousdecision in Black v. Jobling.2
The decision of Butt J. in Gardiner v. Courthopez appears to bethe last reported case on the subject. It is important, becausesubsequently to the decision of Black v. Jobling2 there had been twocases which were cited as having undermined the authority of thatdecision, namely, In the Goods of Bleckley* and Sugden v. LordSt. Leonards.* Mr. Justice Butt, in Gardiner v. Courthope,3 doubtedwhether Sir James Hannen in that case had thrown any doubt onthe law as laid down by Lord Penzance, and regarded the case(which was onfc where the codicil was written at the foot of the willon the same sheet of paper) as a finding of fact that the deceasedhad destroyed the document with the intention of destroying thecodicil as well as the will.
With regard to Sugden v. Lord St. Leonards,B Butt J. commentedon that decision in the following terms : “ It is perfectly true thatin dealing with a demurrer to a plea, which he had already foundto be not true in fact, and as to which, therefore, it did not matterone straw for the purposes of the case whether it was good or badin law, the learned Judge (Sir James Hannen) did intimate that hethought that plea a good plea, although that view seems inconsistentwith the decision of Lord Penzance in the cases which have beencited.”
Butt J. in the result considered himself bound by Black v.Joblingf and admitted the codicil to probate, though it wasdependent on the will to which it belonged, and could not beconstrued without it.
On these authorities the law, I think, is clear. Section 5 ofOrdinance No. 7 of 1840 must be construed to mean what itsays, namely, that testamentary instruments can be revokedonly in the ways prescribed in the section, and that it is not opento us to hold that testamentary instruments can be revoked byimplication.
If the authorities had compelled me to. have come to a differentconclusion I should have regretted the result, for when theLegislature, in a matter of this importance, has laid down ruleswhich are at once simple and precise, it is not to the interest ofthe public that such rules should be obscured or whittled down byjudicial decision.
In my opinion the codicil propounded in this case, not havingbeen revoked by any of the means prescribed in section 5 ofOrdinance No. 7 of 1840, should be admitted to probate. Theappeal therefore, fails and must be dismissed with costs.
2 P. db D. 78.
IP. dbD. 68$.
* i p. <& d. m.a 12 P.db D. 14.* 8 P. & D. 169.
( 471 )
Middleton J.—
The question in this case is whether a codicil to a will which hasbeen properly held to be revoked has also been, revoked according,to law. In this case, I am not sure that 1 should have arrived atthe same findings as the learned District Judge as regards thepossession of the will, and the probability that it was the intentionof the testator to revoke both will and codicil, but by mistake orignorance he only destroyed the will. From reading the ^evidencemy infererces would rather be that the notary was more concernedin these matters than the learned Judge deemed to be the case.Assuming, however, the correctness of these findings, there doesnot appear to me any evidence that the testator revoked thecodicil according to the terms of section 5 of Ordinance No. 7 of1840.
As to the cases relied on by Mr. Elliott, I see that in Grimwood v.Cozens1 the papers found with the codicil, of which probate wassought, contained a draft will stating “ I have destroyed all otherwills or codicils,” and the codicil in question then had the names ofthe attesting witnesses struck through.
In In the Goods of Bleckley {deceased)- the will and codicil werewritten on one sheet of paper, and the deceased had directed anotherwill to be prepared, and revoked the will by cutting off his signature,though he did not mutilate the codicil
In both these cases I think, as Sir Charles Butt said as regardsSir James Hanner’s ruling in Gardiner v. Courthope,3 that thelearned Judges deciding them were of opinion that the evidenceshowed, not only an intention to revoke, but an actual revocationwithin the meaning of section 20 of the Wills Act,J which ispractically the same as section 5 of Ordinance No. 7 of 1840.
In the present case there is no revocation of the codicil within theterms of section 5, and the inference of the learned District Judgeas to the intention to revoke is at its weightiest only in his opinionprobable. Black v. Jobling* and In the Goods of Turner8 are, inmy opinion, strong authorities applicable to the present case. Inthe latter case also, as well as in Gardiner v. Courthope,:J theconstruction of the codicil depended on the destroyed will.
In In the Goods of Ellice’1 the codicil was absolutely independentof the will, both physically and in respect of construction.
“ This difficulty, as regards the will having been destroyed and sorendering the codicil in great part unintelligible*” as Lord Penzancesaid in In the Goods of Turner (ubi supra, p. 406), “ applies in everycase where some other document is mentioned in a will in suchmanner that the directions of the will cannot be carried out without
7 Will IV. and Viet. c. 26.
1 P. AD. 685.
* 2 P. AD. 403.1 33L.J.P.M.A 4-27..
Oct.. 6. 1911
Appuham;/v. Perem
1 2 Sw. A Tr. 364.* 8 P. A D. 169.
3 12 P. A D. 14.
( 472 )
Oct. 6, 1911
Midx>i<eton
J.
v. Percra
a reference to such document, and that document is not forthcoming.It is a question of construction.” In the present case there is, Igather from the evidence, a duplicate of the will, which may be in.existence. In In the Goods of Savage Lord Penzance said, inreferring to his own decision in Black v. Jobling,2 “ the words of thestatute are imperative.”
I would decide this case on the same ground, and dismiss theappeal with costs.
Appeal dismissed.
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