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1M0.Present-: Bertram C.J. and De Sampayo J.
In re THE ESTATE OF DINGIB ALA.
91—D. C. Kandy (Testamentary A).
Document executed by person when very ill—Document in the form of a 'deed—Intention to dispose of property by last will.
Where a document executed by a person was somewhat in thenature of a deed, but where it was dear that he. intended that itshould take effect as a testamentary disposition, the Court gaveeffect to the document as a last will.
pjpHE facts are set out in the judgment.
This was an appeal from a refusal of the District Judge of Kandyto admit to probate the document which was put forward as a will,on the ground that it was not a document intended to take effectafter the grantor’s death, but an immediate gift.
The document (translation) was as follows: “ Know all men bythese presents that I, … Dingirala, of ., being
now afflicted with the disease called Batta-attisara (dysentery), andbeing convinced that by this disease my life will become extinct,and during, the time I have my sound mind and memory, I amdesirous of making over my paraveni lands to my son, who is withme, rendering me assistance, the following property [here followsthe names and description of the property] ….; these
lands. … are hereby made over unto my legitimate son
…. to be dealt with at his pleasure, in the presence of the
“ [Here follows signatures of 14 witnesses.]
“ This was drawn by Appuhamy Korala of W … .
“ (Signed) H. E. A. Welapahala-“ 26-5-19. ”
L. H. de Alwis (with him Weerasinghe), for appellant.—Althoughthe document is partially in the form of a deed, it is clearly testa-mentary in character. It is the intention of the testator thatmust be looked to, not the form of the document. Allowance mustbe made for the crude draftsmanship of a layman. The testatordid not expect to recover from his illness, and executed the documentin contemplation of death, and the document must be regarded asintended to take effect upon his death.
Again, the document cannot take effect as a deed, for it isunstamped, nor executed with the formalities required by' law forthe transfer of immovable property. It is a maxim of law that if
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a paper would be ineffectual in one way, endeavours should bemade to give it effect in another way.
It has been held that a deed-poll and even an agreement or otherinstrument between parties has a testamentary operation. Counselcited Thorold v. Thorold; 1 In bonis Morgan; * Cock v. Cooke; aGreen v. Froude; * In bonis Colyer; * Robertson v. Smith et al.; * Inbonis SUnn;1 In bonis Baxter. *
January 22, 1920. Bertram C.J.—
This is a point of some interest. The action is a testamentaryaction, and the document which is put forward as a will commences“ Know all men by these presents,” and is otherwise, at first sight,in tiie form of an ordinary deed. It was drawn by the Korala ata time when the person executing it was very ill, and it was witnessedby no less than fourteen witnesses. The learned District Judge,from this point of view of the document, has made this note:” This document is not a document intended to take effect afterthe grantor’s death, but an immediate gift. I decline to admit itto probate.”
Mr. De Alwis and Mr. Weerasinghe, for the appellant, have drawnour attention to a number of cases in which it has been clearly laiddown that if.the intention was, in fact, testamentary, the Courtwill not be deterred by the form of the document from giving effectto it as a will. These cases are of early date. The earliest citedto us was the case of Green v. Froude.* They have also drawn ourattention to the case of Thorold v. Thorold,1 and also to moremodem cases, amongst others, of In the Goods of Slinn8 and In theGoods of Colyer.1®
In all these cases the document admitted to probate was in formof a deed, commencing ” Know all men by these presents,” or somesimilar expression, and ending “ signed, sealed, and delivered ” inthe usual form.
In Thorold v. Thorold 1 the Court said: ” In deciding a point ofthis nature, a Court always looks to the substance, and not to theform of the instrument; to the intention of the writer, and not tothe denomination he affixes to it.”
It appears that testamentary intention may be collected bothfrom expressions in the documents itself, and also from extrinsiccircumstances. That is settled by the case of In the Goods of Slinn. 8Now, in this document there are expressions which dearly indicatethat it was executed in contemplation of death, and that theIntention was testamentary. The writer sayB:“ I think by this
1 (1809) 1 PhO. 1.
1 (1868) IP. A D. 214.
(1866) IP. AD. 241.
8 (1674) 1 Mod. 117 ; 3 Keb. 310.
(1889) 14 P. D. 48.
* (1870) 2 P. AD. 43.
(1890) IS P. D. 136.
(1903) P. 12.
• (1890) IS Pro. Die. 166.10 (1889) 14 Pro. Die. 43.
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In re theMetate ofDingirtda
disease my life will become extinct, and during the time I havemy sound mind and memory, I am desirous of making over myparavetii lands to my son.” I think, therefore, that there is ampleevidence of testamentary intention.
But, although at first sight any person reading this documentwould naturally construe it as a deed, still there is, in fact, nothingin its terms to prevent it being construed as a will. The makerof the document recited his conviction of his approaching end, hissound mind and memory, and his desire to make over his propertyto his son. He enumerates the property which he so makes over.There is no reason why those expressions should not be construedas expressions in a' will, and there is, in fact, no need of anyspecial proof of testamentary intention. The document in itselfis capable of being construed as a will.
For all these reasons, I think, that the judgment should be setaside, and the document admitted as a testamentary document.
De Sampayo J.—I agree.
In re THE ESTATE OF DINGIRALA