030-NLR-NLR-V-18-JAYAWARDENE-v.-JAYASINGHE.pdf
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Present: Pereira J. and Ennis J.JAYAWABDENE v. JAYAS1NGHE.
99—D. C. Colombo, 4,654*
Patent ambiguity—Extraneous evidence—Language of last will not strictlygrammatical—Intention of testator.
Extraneousevidence isnotadmissibleto' explainapatent
ambiguity inthe words ofa will.' Wherethelanguage ofa will
is not strictly grammatical,themeaning to begiven toitshould
be consonant with what the context shows the testator intended.And so where in one clause of a will it was provided that theexecutor shouldsellallthe movableand immovableproperty of
the testator and call in and collect all “ outstanding moneys,"and later inthewillthetestator madereference totheestate being
(present tense) worth a certain sum,—
Held, thatthereferencewas to thewhole estatethatthe executor
would have to sell and call in and collect, that is to say, to theestate as atthedateofthe death ofthe testator,andnot to the
estate as at the date of the will.'
T
HE followingportions ofthelast willare material to thi3
report: —
It ismy willanddesire that my executors hereinbefore named
shall' causeall mymovable and immovable property, whatsoeverand
wheresoever the same may be,whetherinexpectancy, reversionary, or
otherwise,to be well advertisedinthe localpapersfor at least a month
and then sold by a good and reliable auctioneer by public sale.
Allmy outstanding moneysshall becalledin and collected. It
is my desire that the moneys so realizedfrom the saleof myimmovable
property as well as from the sale of my movable property, together withthe moneyscollected,shall,subject to the payment of all my justand
lawful debts and testamentary expenses,bedividedin thefollowing
manner, to wit:— ….
Thesum of Bs. 15,000ismy approximatevalue of my estate,
inclusive ■ ofjewelleries andother articles belonging to me. In casemy
estate isworth more, thenthe legaciesabovementioned shall be
proportionately increased, and. incase itisless, thelegaciesshall be
proportionately decreased. ….
Bawa, K.C., and F. H, B. Koch, for appellant.
SomaTawickTeme, for executors, respondents.
"Cut. adv. twit.
November 7, 1914. Pbheiba J.—
In this ease the question is whether the last' will of John CorneliusJayesinghe is to be deemed to apply to the property that belonged
1914.
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1914. to the testator at the date of the will, or to the property that belongedPbuejbjl j to him at the time of his death. As a general rule, a will speaka
as at tile date of .the death of the testator, but it is said that in the
ayawardene ywaent case there is sufficient in the words used in the will toJayannghe indicate that in paragraph 4 at least (I have numbered the para-graphs in red pencil for convenience of reference) the word ** estate ’*is used to imply the estate of the testator at the date of the making- of the will. The District Judge has allowed extrinsic evidence tobe led to explain the meaning of paragraph 4, but in my opinionthat course was altogether unnecessary, and, indeed, not justifiedby law. If there is at all an ambiguity, in the clause, it is not alatent but a patent ambiguity, and as regards the latter, the ruleof law is ambiguitas verborum patens nulla verifications excluditur.The subject is treated of in sections 93 to 97 of our Evidence Ordi-nance. The difficulty in the interpretation of clause 4 of the willreally lies in its bad grammar—bad in view of the intention of thetestator to be gathered from the context—rather than in the ambi-guity of any expression used, and a$ observed by De Villiers C.J. in thecase of De Jager v. De Jager 1 “ where the language in a will is notstrictly grammatical, one should attach that meaning to – it whichit is quite clear from the context that the testator attached to it."Let us examine the context. Clause 3 of the will provides that theexecutors shall cause “ all the movable and immovable propertyof the testator, wheresoever the same may be whether in expectancy,reversionary, or otherwise, to be advertised and sold, " and that all"outstanding moneys shall be called in and -collected "; and thenthe testator proceeds to say that he desires that the “ moneys sorealized " should be divided among certain named devisees. It ismanifest that by .the expression '* moneys so realized," he meantthe moneys realized in the manner provided in paragraph 3, in otherwords, moneys realized by the sale of the whole estate that he woulddie possessed of. This much was not contested by the respondent'scounsel. The total amount of the so-called legacies was Rs. 150,000.That being so, when, in clause 4, the testator valued his estate atthe same sum, and provided for the contingency of the estate beingworth more or less, it is clear that the “ estate ,f that he therereferred to was the selfsame estate that he dealt with by paragraph3. The word " is " in the sentence " in case my estate is worthmore " is a grammatical error (common enough in the country) for"be, " meaning “ shall be " or " should be, " and it should not beallowed to defeat the intention of the testator to be gathered fromthe context.
For these reasons I would allow the appeal with costs.
Ekkis J.—I agree.
Appeal allowed*
1 1.4. C. ft. South Africa 449.