JOHN PIERIS et al., Appellants and W. H. WILBERT, Respondent

062-NLR-NLR-V-59-JOHN-PIERIS-et-al.-Appellants-and-W.-H.-WILBERT-Respondent.pdf

Pier is t». Wilbert
243
i956Present : Gratiaen, J., and Pulle, J. .JOHN PXERLS et al., Appellants, and W. M. WILBERT, Respondent5. G. 166—D. C. (Pity.) Colombo, 13,653II'ill—Probate—Objections to grant—Durden of proof.'
An application for probate of a will was resisted on the ground that thetestator was not in a lit state of mind at the time tho will was executed. Thopetitioner was nominated in the will as executor and also as “ solo and universalheir of nil the estate and effects ” of the deceased. It was not disputed that thepetitioner took on activo part in getting tho will executed.
Held, that in coses of this nature two rules ought to be observed. The .first.,that tho burden lies in ev'ery case upon the pnrty propounding the will to satisfytho conscience of tho Court that the instrument so propounded is the last willof a free and capnblo testator. Tho' second is, that if the will is prepared by oron the instructions of nparty who takes a benefit under it, that is a circumstancethat ought generally to excite tho suspicion of tho Court and call upon it to bovigilant and jealous in examining tho evidence in support of the instrument,
. in favour of which it ought not to pronounce unless the suspicion 13 removed.The second rule extends to all cases in which circumstances exist which excitotho suspicion of tho Court..'.‘
2*J. X. R. 21504 (2/5S)
246
PULLE, J.—Pier is v. Wilbert
jA.PPBAL from an order of the District- Court, Colombo.
»
S. J. V■ Chdvanayakam, Q.C., with E. R.S.JR. Coomarasivamy, for theTespon'donts-appcllants.
II. IT. Jayeuardene, Q.C., with D. If. P. Goonctilleke and P. Ranasinghe,for tho petitioner-respondent.
Cur. adv. vull.
April 30, 1956. Pclle, J.—
This is an appeal from an ordor admitting to probato an instrumentpurporting to be the last will of ono George Theobald Pieris who died onthe 7th Alay, 194S. Tho will (Exhibit P6) was executed on 4th A raj', 194S,and was attested by a notary and two witnesses.
By this will tho testator specifically bequeathed three lands to one
W.M. Wilbert and nominated him as the executor. He was furthernominated as “ tho solo and universal heir of all tho estate and effects
which shall bo left by me after my death whether movable or immovable> >
The testator was SO years old. Ho was the father of three childrennamed Benjamin, John and Alice by a lady to whom he was not marriedand who predeceased him. Tho application for probate was made bytho executor (referred to hereafter as the “ petitioner ”) and it was resistedby tho three appellants, ' namely Benjamin and John and also by oneAirs. Emily Mendis who claimed, as a sister of tho testator, a 1 /7th shareof the estate on the basis of an intestacy. The petitioner was the son of anold servant of tho testator. He had boon living several years with thetestator and was trusted by him. As many as 42 lands were inventorisedas part of tho estate. These wore valued at Rs. 16,360. Tho movableswero comparatively of little worth.
The testator was admitted to the surgical ward No. 3 of the GeneralHospital on the 27th April, 194S, with a history of abdominal pain whichwhich had lasted two weeks. The visiting surgeon of this ward wasDr. V. Gabriol and the house surgeon Dr. A. Rajiyah. The testator wasin this ward until ho died on the night of 7th May. Air. L. L. P. do S.Sonaratne, Proctor and Notary, on receiving instructions from one Lionelde Silva, the first witness to the will, went to ward No. 3 apparently accom-panied by tho petitioner to take instructions from tho testator for drawingup a will. This was on the evening of 3rd May. The testator was foundsleeping and arrangements were made that night both by Lionel do Silvaand tho petitioner for the notary to visit the hospital tho next day atabout 10.30 a.m. He spoke to the testator on 4th Alay in the presenceof tho petitioner and Lionel do Silva and obtained instructions which he(tho notary) recorded in Exhibit Po and to which ho obtained the signatureof the testator. He went back immediately to his office in Hultsdorp,had two copies of tho will typed, and went again to the hospital andobtained the signaturo of the testator, after reading out the draft, to theoriginal and tho duplicate. Tho second attesting witness was one
PULLE, J.—Pieris v. Wilbert
247
H. A. Gunasokore whoso brother was married to a sistor of the petitioner.It is not disputed that the petitioner took an active part in getting the .will executed.•
In regard to the inquiry to the objections to the grant of probate it issufficient to refer to only two of the issues. They are : ‘
“ 2. Had the deceased testaiuentarj- capacity at the time of makingthe said will ?'
" 4. Was the deceased in a fit state of mind to execute the said lastwill at the time it was said to bo executed ? ”
The appellants sought in addition to impugn the will as a forgery.The learned trial Judge held on this issuo as well in favour of thepetitioner. His finding as to forgery was not contested at the argument-in appeal.
The petitioner did not hirnelf give evidence at the inquiry. To supportthe will ho called Dr. Gabriel, Dr. R. Rajiyah, the notary and the twowitnesses. If their evidence could have been acted upon at its face valuethe appeal is bound to fail. The argument on behalf of the appellants,however,- is that having regard to the evidence, taken as a whole, and thefindings thereon tliero was proof of circumstances of suspicion attachingto the execution of tho will and that the petitioner has failed to dischargetho burden resting on him affirmatively to satisfy the court that the .testator knew and approved of the contents of the document. Reliancewas placed on the judgment of Dindley, L. J., in Tyrell v. Painton 1in which tho learned Lord Justice cited with approval the followingpassage from the judgment of Parke, B., in the Privy Council case ofBarry v. Bull-in s..
.“ Tho rules of law according to which cases of this nature are to be
decided do not admit of any dispute so far as they aro necessary to thedetermination of the present appeal and they have been acquiesced inon both sides. These rules are two : The first that tho onus probandilies in every case upon tho party propounding a will and ho must satisfy .tho conscience of tho Court that the instrument so propounded is thelast will of a freo and capable testator. Tho second is that if a partywrites or prepares a will under which he takes a benefit, that is a circum-stance that ought generally to excite the suspicion of the Court-, and callupon it to bo vigilant and jealous in examining the evidence in supportof tho instrument, in favour of which it ought not to pronounce unless the ’suspicion is removed, and it is judicially satisfied that the paper propoundeddoes express the true will of tho deceased. ” Lindley, L.J., statesin respect of the second rule that it is not “ confined to the single caso inwhich a will is prepared by or on tho instructions of tho person taking -large benefits under it, but extends to all cases in which circumstancesexist which excite the suspicion of the Court.” Reference was also
1 (ISO-1) P. 151.
– 2 Moo. P. G. 430.
2-lS
PULLE, J.—Pieris v. TFtibert
made to tho Alim Will case 1 and the decision of the Privy Council inHarmes and another v. Hink-son 2. In tho last mentioned case Lord DuParcq delivering the judgment of the Board stated,
“The concluding words of the rule, as it was stated by Baron Parke>emphasize the- necessity of the complete removal of doubt from thejudicial mind. ‘ The conscience of the Court ’ must- be satisfied.Whether or not the evidence is such as to satisfy the conscience of thetribunal must always be, in the end. a question of fact. ”
The evidence adduced in this case may now bo examined in some detailin tho light of the principles laid down in the cases quoted above.
Tho opinion of the medical witnesses was based, to a considerableextent, on the entries in the bcd-heacl ticket, Exhibit PI. Shortly afteradmission on the 27th April an X-ray examination of the testator revealeda calculus at the lower end of the ureter. It was the case for the appel-lants that from tho 30th April there was a steady deterioration in thecondition of the testator, that by the 3rd May he was lapsing into astate of semi-consciousness which progressively became worse until hepassed off in a state of deep coma. Owing to rost-Iessness and violenceof movements duo partly at least to pain the testator was placed on a bedwith railings.-.
Against the date 30th April the bed-head ticket reads,
“ General condition not very good. Patient slightly restless. ”
The amount of urea in the blood, according to the Pathologist’s report,was 145 milligrams and in the urine 2.4. These figures are admittedly,high and in the absence of proof that upon later blood and urine teststhere was an improvement the chances were that the patient’s conditionwould gradually become worse because the disease had a fatal ending. in the course of a week.
The entry on the 1st May was :
“ Patient slightly restless. Urine to be charted. Xo temperature.Fluids ad lib. ”,
There is no entry for 2nd May which was a Sunday but on the line justbeforo the entry of 3rd May is the note, “ Drowsy at times. ” followed by‘‘Tongue coated. Fluids ad lib.”
Against 4th May it is noted,
“ Omit all.” followed by a reference to a mixturo and “Saline andGlucose O. T. ”
There is nothing to indicate a difference in the treatment on 5th May.The entry states “ Same—Cipla 50 c.e. ” It is not necessary to go throughtho entries of 6th and 7th May as it is obvious that the testator was thenin a very low condition.
Dr. Gabriel, a surgeon of eminence, oxpressod the opinion at the endof his evidence in chief that the testator was, on the 4th May, of soundmind and in a fit condition to make a will. I have no doubt that up to
2 {1946) 62 T. L. R. 445.
{1919) 20 N. L. R. 4S1.
PULEE, J.—Pieris v. Wilbert
249
this stago he honestly believed that tho patient was visited by him in thecourse of his normal duties between the 27th April and 7th May.Besides ho had given a certificate (Exhibit P3) dated the 11th February,1950, to the following effect:.
“ Tliis is to certify that Mr. George Theobald Picris of GOO, Old Road,
, Nawinna, Nugegoda, was a patient under my care in the General
Hospital and was of sound mind to make a will on the 4th May, 1948. ”
By tho 11th February, 1950, the appollants had filed their objectionsto the grant of probate and the petitioner had apparently requestedDr. Gabriel to express an opinion as to tho testator’s mental conditionon a study of the bed-head ticket. . Naturally, !Dr. Gabriol who gaveevidence in October, 1952, had no independent recollection of the patient.
' Ho was a busy practitioner and it is in evidence that Ward No. 3 of whichho and his assistant Dr. A. Rajiyah were in charge had as many as 65patients. In cross-examination Dr. Gabriel was asked whether ho wason leave from 15th April to 3rd May, 194S. His answer was,_
“ I hardly think so because I would not have taken leave for such along period. It may be, but I do not remember having taken suchlong leave. I am not denying it but I cannot remember. From 15tliApril till 3rd May I might have been on leave but I cannot say. Ihave not brought any of my diaries or any document from which I canverify whether I was on leave or not. ”
The appellants produced a certified copy (Exhibit D24 A) ofDr. Gabriel’s leave register for the years 1946, 1947 and 1948 accordingto which he was on leave from tho 15th April, 1948, to 3rd May, 194S,being 19 days lieu leave. On this point the learned District Judge’scomment was that the register was not conclusive evidence thatDr. Gabriel had availed himself of the full period of leave granted, for itsometimes happens that an officer returns to work before the expirationof the leave. With all respect I do not think it was open to the Judge tospeculate that Dr. Gabriel might have curtailed his leave, for in thatevent an entry would have been made in the register, for accountingpurposes, of the number of days not availed of. I feel that Dr. Gabrielwas hardly in a better position to express an opinion than Dr. J. H. F.Jayasuriya whose opinion was expressed on the material set out in thebed-head ticket and on the facts spoken to by some witnesses called onbehalf of the appellants. The Judge’s comment on the certificate P 3 of1950 is
“ It is very unlikely that a person of Dr. Gabriel’s responsibilitywould have given a certificate of this nature unless he was satisfied. in his mind as to Pieris’ testamentary capacity on the 4th of May. ”
It appears to me rather unlikely that the certificate P3 would havebeen granted had it been brought to Dr. Gabriel’s notice that it was amatter of record he had been on leave from 19th April to 3rd May.
Before comparing the opinions expressed respectively by Dr. Gabrieland Dr. Ja3'asuriya it is necessary to deal with the evidence of threewitnesses whose testimonj^ was accepted by the Judge and of another -witness Sister Mary Andrea whose veracity was'not doubted.-~.
250
PULLE, J.—Pier is v. Wilbert
The first is Mr. S. Somanathan, a Proctor of 19 years standing, in whonthe testator reposed confidence. It is sufficient to state that the monieof the testator used to be paid by him into a bank account in the name oMr. Somanathan on -which the latter operated only at the testator’!request. Mr. Somanathan received a message from the testator througtthe petitioner to see him at the hospital. He went to the hospital twic<but the precise dates have not been satisfactorily fixed. The first wasabout the 29th or 30th April in the evening. He addressed the testatoiand asked him why he wanted him. The following is the account giverby the witness :
“ He nodded to me and he told me in a very low voice that he wantedto make a -will and then he touched the pillows and sheets which werespread on the bed and he said he wanted to give those to his children.As far as I am aware they were hospital pillows. I listened to him andI thought he was not talking coherently. ”
. The impression that the witness formed was that the testator wasspeaking in " a sort of comatose condition He was definitely of theopinion that the patient was not in a fit condition to execute a will andinformed the petitioner accordingly. The second visit of Mr. Somanathanwas probably on Monday the 3rd May between 11 am. and 12 noon.The patient appeared to be worse. When addressed he would not replyand showed no signs of recognizing him.
It is indisputable that the testator’s daughter, the wife of one CaptainShanmugam, came by air from India on the afternoon of 3rd May andwent to see her father the same evening. He found him, as she describes,unconscious. She called out several times “ Papa Then he openedhis eyes and looked all over rolling his head from side but was unable torecognize her. On the evening of 4th May she found him in the samecondition unable to recognize her. She was at the bed side for aboutan hour. When she tried to feed him with a little orange juice it trickledout of his mouth. She found his condition no better on the oth eveningand on the 7th he was very bad..
Mrs. Florence Senanayake, a Member of Parliament, was a friend of thefamily of the testator. She paid a visit to the hospital on the eveningof the 4th May and was by the bed side in the company of Mrs. Shan-mugam. She has fully corroborated the evidence of the latter as to thecondition of the patient on the 4th May.
Rev. Sister Mary Andrea was in charge of Ward No. 3 in 194S.Although she gave evidence in July, 1953, she had sworn an affidavitregarding the testator’s condition on 20th September, 1952, and wasable to recollect his case by associating him with Mrs. Shanmugam whohad come from India. She had obviously the most number of opportu-nities of seeing the testator. She remembered him also as a patient kepton a barred bed with railings all round. She is definite that for aboutfour or five days before his death the testator was semi-conscious. Bythat she meant a continual state of drowsiness, perhaps brokenoccasionally for a little time, associated with a person of advanced yearssuffering from uraemia. She was questioned about tho entry in thebed ticket on 4th May. According to her the direction “ Omit all.”
PUX.LE, J.—JPicris v. "Wilbert
251
on 4th Hay did not connote any improvement in the condition of thepatient but only a change in the treatment. Saline and glucose injectionswere directed to be given that day because he could not take enoughfluids by mouth. On this point the witness is strongly supported bythe testator’s daughter and Mrs. Florence Senanayake.
Coming now to the expert evidence, in the course of his cross-examina-tion Dr. Gabriel admitted that the entry of 1st 3fay showed that thepatient’s condition was worse than on the previous day. He also ad-mitted that if the testator sought to gift away the hospital sheet andpillows it indicated • that his mind was affected and if he could notrecognize his own daughter on the 3rd or 4th May he may have been in a,near comatose state. Dr. Gabriel did not attach much importance to thenote “drowsy at times” and “tongue coated”.
Dr. Jayasuriya expressed a view contrary to Dr. Gabriel’s as to theinferences that could be drawn from the entries “ Drowsy at times ” and“ tongue coated ”. According to him they were, having regard to thehistory of the illness, indications of a progressive deterioration of thepatient by the accumulation of toxic matter and he has given reasonswhich commend themselves to me.- Dr. Jayasuriya went so far as todoubt that the patient had any mental understanding from the 1st May.
' After reviewing the evidence of Dr. Gabriel and Dr. Jayasuriya thelearned Judge said,
“ In this conflict of views I do not feel justified in drawing any in-ference one way or the other from the entry of the 4th nor is it possibleto conclude that the patient was in a semi-comatose condition fromthe 1st May. ”
With all respect I shoizld say that on this finding the learned Judgeshould have held against the petitioner as the burden rested on him tosatisfy the conscience of the court in regard to the circumstances ofsuspicion. –
The learned Judge seems to think that the testator’s reference to thesheet and pillows might have been an angry rejoinder to a possible queryby Proctor Somanathan whether the will was to be made in favour of thechildren. Then in regard to the first visit of the daughter on the 3rd Mayhe apjjears to be impressed by the suggestion that the testator deliberately .refused to recognize the daughter as she might have heard a discussionbetween her and her two brothers to remove him from the ward. In myview there was no reason why the learned Judge should not have heldthat the testator was irrational in his conversation with Proctor Soma-nathan and was incapable of recognizing or holding-a conversation withthe daughter.
As to Mrs. Florence Senanayake he accepts her evidence that the testa-tor was on the evening of the 4th May in a low condition and unconsciousbut in his opinion that was not an indication he was in that condition onthe morning of that date. It is somewhat remarkable that ^Lionel deSilva, whom the Judge thought was a truthful witness, was positivethat when he saw the testator on the 5th May evening he found himquite normal and smiling and conversed with him for 10 or 15 minutes!
25*2
Pl’LLE, J.—Pier is v. Wilbert
The Judge thinks that although Sister Mary Andrea said that for somedays the testator was in a semi-comatose' condition her evidence did notexclude periods of consciousness. Her evidence read as a whole is cleaithat the testator was throughout those days in a drowsy condition with anoccasional break. There is nothing to suggest from what she said thathe was of such a sound memory and understanding as to be able to make awill.
Before concluding the judgment there are one or two matters of im-portance which must be adverted to. After the notary returned fromthe hospital on the 3rd May he asked Lionel de Silva to obtain the ser-vices of a doctor to be present at the execution of the will. On themorning of the 4tli May the petitioner and Lionel de Silva saw Dr. Gabrieland obtained the document P2 signed by him to “ allow bearer andanother to see me in ward 3 at 3 p.m.”. In point of fact the will whichis numbered as the first instrument attested by the notary M as executedin the forenoon in the absence of any medical adviser who could pro-nounce on the patient’s capacity to understand the transaction. Lionelde Silva’s explanation is that the testator was anxious to have the willexecuted without any delay on the morning of 4th May because his sonswere worrying him, that he attempted to get in touch with Dr. Gabriel toadvance the time and failed. Honrever, it is a matter for comment thatboth the notary and Lionel de Silva did 2iot take the precaution of askinga responsible official attached to ward No. 3 to be present at the signingof the Mull.
According to the notary the instructions he received (Exhibit Po)on the morning of 4th May were that the testator wanted to bequeathto the petitioner “ (1) Katupotha, (2) Ivitulpe, (3) Anashvatte and allother properties not mentioned here ’•’. It is surprising that in the longlist of lands inventorized not a single one of the properties named abovefinds a place. There is no proof whatever that the testator ever owned aland known by any one of those names.'
After the testator had fallen on evil days and lost his valuable pro-perties he succeeded in retrieving a land called Rikilhgama Estate of 220acres in the year 1939. He induced the mortgagee to transfer that estateto John and Alice. He was in possession of the property up to thetime of his death and it was for long the only source of his income. If asthe Judge finds the testator did not take the transfer in his own namelest he feared seizure by other creditors and that, inferentially, Johnand Alice held the estate in trust for the testator, it is singularly strangethat while he mentioned to the notary.the names of three unknownlands to be bequeathed to the petitioner, he forgot altogether the estateof 220 acres of which he was in possession since 1939.
Looking at the case as a whole, even if it could be said that the testatorknew what he was doing up to a point, it is impossible to believe that inthe background of the evidence of Mr. Somanathan, Mrs. Senanayake andSister Mary Andrea he was in sufficient possession of his faculties to appre-ciate fully the implications of the documents to which his signature wasobtained on the morning of 4th May. In these circumstances hispurported testamentary disposition ought not to be alknved to stand.
H. NT. G. FERNAXDO, J.—Ferdinands v. dc Alwis253
In the result the appellants succeed .on the submission that the peti-tioner has failed to discharge the burden of removing the suspicions,attendant on the making of the will. I would, accordingly, set asidethe order under appeal and declare that George Theobald Pieris diedintestate. The petitioner will pay to the appellants the costs of appealand the costs in the District Court.•
GRATrAEX, J.—I agree.
Appeal allowed.