062-NLR-NLR-V-48-JAYASUNDERA-et-al.-Appellants-and-PERERA-Respondent.pdf
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Jayasundera t>. Per era.
1947Present: Soertsz A.C.J. and Cannon J.
JAYASUNDERA et al., Appellants, and PERERA, Respondent.
34-—D. C. Kalutara, 3,037
Will—Probate—Denial by attesting witness of due attestation—Effect of suchdenial—Prevention of Frauds Ordinance (Cap. 57), s. 4—Unsuccessfulobjection to grant of probate—Liability of estate for costs.
In an application for probate of a will, the only issue was whetheror not the will was duly witnessed by the five persons whose namesappeared in the document. Two of these attesting witnesses contra-dicted the attestation clauses of the will, while two others supportedthe attestation.
Held, that the Court could grant probate on the evidence of the two ■witnesses who supported the attestation.
Held, further, that where an application for probate is unsuccessfullyopposed by blood relations of the testator the costs of the proceedingsmay be directed to be paid out of the estate, if the circumstances meritsuch an order.
CANNON J.—Jay asunder a v. Perera.197
^^PPEAL from a judgment of the District Court, Kalutara,
A. Hayley, K.C. {with him N. Nadarajah, K.C., D. W. Fernandoand A. C. Gunaratne) for the objectors, appellants.
V. Perera, K.C. (with him N. E. Weerasooria, K.C., Ivor Missoand Vernon Wijetunge) for the petitioner, respondent.
Cur. adv. vult.
February 18, 1947. Cannon J.—
This litigation concerns the execution of a will by one AndirisGoonetileke of Talpitiya in 1941. It is a non-notarial testament andtherefore required attestation by five witnesses. In it the testator,a wealthy man, bequeathed all his property to his adopted son, TudorPerera. The application for probate, which was made by Tudor’s firstcousin as the surviving executor, was opposed by the testator’s sister andthe children and grand-children of another sister and brother. TheDistrict Judge granted probate and it is against that order that thisappeal is brought.
The evidence adduced at the trial and the argument addressed to usfor the appellants would, I think, have been more relevant, had thedispute been as to the existence of the will, or undue influence or themental condition of the testator, or whether the attesting witnesseshad signed in each other’s presence. It is, however, conceded that thetestator did himself execute the will, and that the question of undueinfluence was not an issue in the Court below. The testator’s mentalcapacity had been an issue in previous proceedings, but they ended infavour of the testator, and that decision was upheld by this Court. Thepresent issue was merely whether or not the will was duly witnessed bythe five persons, whose names appear in the document, in accordancewith the Prevention of Frauds Ordinance, Chapter 57, section 4, whichrequires that—
. . .. it shall be signed at the foot or end thereof by the
testator, or by some other person in his presence and by hisdirection, and such signature shall be made or acknowledged by thetestator in the presence of a licensed notary public and two or morewitnesses, who shall be present at the same time and duly attest suchexecution, or if no notary shall be present, then such signature shallbe made or acknowledged by the testator in the presence of five ormore witnesses present at the same time, and such witnesses shallsubscribe the will in the presence of the testator, but no form ofattestation shall be necessary.
It was argued in support of the appeal that the evidence was notsufficiently cogent to enable the District Judge to grant probate. Atthe trial before the District Judge three of the attesting witnesses werecalled by the petitioner and one, named Vionis Perera, by the objectors.Girigoris Fonseka, one of the three witnesses called by the petitioner,
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CANNON J.—Jayasundera v. Perera.
stated that he did not see the testator execute the will, while VionisPerera stated that all five witnesses were not there at the time. Thisevidence of Girigoris was in direct contradiction of an affidavit madeby him, while the evidence of both Girigoris and Vionis contradicted theattestation clauses of the will. Vionis also admitted that he had beendismissed from his post of Headman for irregularities regardingfinance.
In Wilson v. Haddock' Vice-Chancellor Shadwell said—
I have always thought that if any attention at all ought to be paidto the testimony of witnesses who deny the solemn act which theyhave attested) it ought to be the slightest possible. Perhaps the bestway would be to disregard it altogether.
In Mc.Gregor v. Topham" Lord Brougham cites this dictum withapproval and adds—
And Lord Mansfield was so clearly of this mind that he said thatinstead of attending to such witnesses they ought to be consignedto the pillory. That was this great Judge’s strong exppression, whichit may be impossible that we should entirely adopt, but it showed clearlyin what light he viewed such testimony.
The District Judge apparently adopted these obiter dicta in rejectingthe evidence of Girigoris Fonseka and Vionis Perera. He has actedon the evidence of the two witnesses who supported the attestation andagainst whose credit nothing tangible was elicited. The question isone of the weight of evidence and I do not see anything in the evidenceor in the District Judge’s judgment which would entitle this Court tointerfere with his findings. I would therefore dismiss the appeal withcosts.
I do not, however, think that the circumstances merit a departurefrom the practice, in such cases as this, of sometimes directing the coststo be paid out of the estate. In fact the evidence tends to supportMr. Hayley’s argument that some of the testator’s “ in-laws ” (includingthe petitioner and his mother) contrived to place themselves in a positionwhich would normally be taken by the testator’s blood relations(including some of the objectors) and consequently benefited bysubstantial gifts inter vivos made by the testator. I would therefore,in dismissing the appeal, vary the order of the District Judge regardingcosts and direct that all the costs of the proceedings in the Court belowas well as in this Court subsequent to the Supreme Court judgment, datedFebruary 18, 1944, be paid out of the estate.
Soertsz A.C.J.—I agree.
‘ (1841) 44 Dif/est, p. 200.
Appeal dismissed.(1850) 3 House of Lords Cases, p. 156.