081-NLR-NLR-V-54-MAUD-DAVID-Appellant-and-GRACE-ROBERTS-Respondent.pdf
ROSE C.J.—David v. Roberta
343
1952Present: Rose C.J. and Gunasekara J.MAUD DAVID, Appellant, and GRACE ROBERTS, RespondentS. C. 96 (Inty.)—D. O. Colombo, 14,398
Will—Written on two sheets of paper—M.ay constitute one instrument—Preventionof Frauds Ordinance {Gap. 57), s. 4.
-A will may bo composed of numerous papers, which together make oneinstrument. In such a case, the Court should consider the question whether,in the light of the evidence adduced in the particular case, the papers inquestion constitute a single instrument in conformity with the requirementsof section 4 of the Prevention of Frauds Ordinance or whether they are “ separateand independent ” documents.
Ap:
PEAL from an order of the District Court, Colombo.
TTiiagalingam, Q.C., with S. J. Kadirgamar and G. L. L. de Silva,for the intervenient-appellant.
H. V. Perera, Q.C., with P. Navaratnarajah and G. Chellappah, for thepetitioner-respondent.
Cur. adv. wit.
October 28, 1952. Rose C.J.—
The Petitioner-Respondent has propounded what is claimed to be theLast Will executed by one D. S. David, now deceased, and she asks forLetters of Administration with the Will annexed. The Appellant-Objector as Intervenient has filed his statement of objections allegingvarious matters affecting the validity of the Will. One of the issues—No. 11—was agreed by the parties to be heard as a preliminary issueand it is only with regard to that issue that this appeal is concerned.
Issue No. 11 reads “ Ex facie does the document comply with theprovisions of Section 4 of the Prevention of Frauds Ordinance (Chapter57) ? For the purpose of the present argument the appellant concedesthat the matter should be considered on the basis of the facts mostfavourable to the respondent, that is to say, that it should be assumed(for the purpose of this appeal only) that the writing was on two sheets ofpaper ; that it was entirely written by hand ; that at the bottom of thesecond page of the first sheet appears the signature of the Testator,
S. David ; that alongside that signature appears the word and figure“ No. 1 ” and the signature of what is presumably an attesting witness ;that there is no room at the bottom of this page, either above or belowthese two signatures, for any other signature ; that on the second sheetappear four other signatures No. 2 to 5 which presumably are signaturesof the other attesting witnesses ; and that the two sheets, at the relevanttime, were pinned together.
The relevant words of Section 4 of the Prevention of Frauds Ordinanceare as follows : “It (the Will) shall be signed at the foot or end thereofby the Testator …. such signature shall be made or acknowledged
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ROSE C.J.—David v. Roberts
by the Testator In the presence of five or more witnesses present at thesame time, and such witnesses shall subscribe the Will in the presenceof the Testator, but no form of attestation shall be necessary
The question as to whether a particular Will which is contained inmore than one paper in fact forms one instrument and therefore complieswith the requirements of this statute is frequently one of difficulty butit seems to me that the principle applicable can be derived from certainEnglish authorities which relate to statutes in substantially similarterms- and which in my opinion are not inconsistent with the decisionsof our own Courts in Ceylon. Section 9 of the (English) Wills Act of' 1837, which, as regards the signature of witnesses, is re-enacted in theWills Amendments Act of 1852 is in substantial conformity with ourown Section 4 of Chapter 57. In In the Goods of Horsford 1 the deceasedsigned his name and the witnesses attested his signature on a piece ofpaper upon which no dispositive part of the Will was written. This paperwas attached with a string to the paper on which the Will was written,just opposite to the termination of the writing. The witnesses deposed—and their evidence was apparently accepted—that the papers, to the bestof their knowledge, were in the same state when they signed them asthey were at the trial, that is to say, that they were attached bystring.
It was held that the execution was valid. Sir James Hannen at page214 said, “ The evidence of the attesting witnesses is not very clear asto what occurred at the time of execution but I have come to the conclu-sion that the sheet was attached to the codicil at that time and that theTestator acknowledged his signature to the witnesses before theattestation ”.
The principle upon which the learned Judge no doubt arrived at this' decision appears to be stated by himself in a later case in In the Goods ofHatton2 where he said, “The Will may be composed of numerouspapers, which together make one instrument ”. In that particularcase the learned President (as he then was) held that the Willwas not entitled to probate on the ground that on the facts the two docu-ments in question were “ separate and independent ” documents, theposition being that the intended Will was written in duplicate, onecopy being signed by the deceased only and the other by the attestingwitnesses.
In a comparatively recent English case In the estate of Mann 3the above observations of Sir James Hannen were referredto with approval and the principle was carried even to the extent ofholding that an endorsement by the Testatrix on an envelope (containingthe dispositive part of the Will) of the words “ The East Will and Testa-ment of Jane Catherine Mann ” was sufficient to entitle the envelopeto be regarded as an attached paper and that therefore the documentsshould be admitted to probate. It is to be noted that in this case thelearned Judge came to the conclusion on the facts that the circumstancesprecluded any possibility of fraud.
1 L. R. (1874) 3 R. D. 211.8 (1881) 6 P. D. 204.
3 (1942) 2 A. E. R. 193..
VaitUingam v. The Queen
345
It seems to me that this is the correct test to be applied to a case ofthis kind ; that is to say, that the trial Court should consider the question,in the light of the evidence adduced in the particular case, whether thepapers in question in fact constitute a single instrument or whetherthey are “ separate and independent ” documents.
I would add that the appellant relied upon a case reported in 1 SupremeCourt Circular x. It is to be noted, however, that the report is shortand deficient in reasons; nor in the absence of a clear statement of thefacts is it necessary to assume that the learned Judge acted upon a■different principle from that stated in the cases to which I have referred.Moreover, in a later case reported in Leader Law Reports 8 a moreliberal view, from the point of view of the propounder of the 'Will, isadopted.
For these reasons I am of opinion that the learned District Judgewas correct in holding that ex facie the papers which the petitioner-respondent is endeavouring to propound as a Will are capable of beingheld to form a single instrument. Whether or not the learned DistrictJudge ultimately comes to that conclusion must, of course, depend uponthe evidence and the inferences to be drawn from the surroundingcircumstan ces.
That being so, the appeal is dismissed. The appellant must pay the•costs of this appeal and such costs of the lower Court as are attributableto the determination of issue 'No. 11".
•GmsfASEKARA J.—I agree.
Appeal dismissed.