PIERIS v. PIERIS et al

040-NLR-NLR-V-08-PIERIS-v.-PIERIS-et-al.pdf


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PIERIS v. PIERIS et al.
D. C., Colombo, C 1,850 (Testamentary).
hast will—Ordinance No. 7 of 1840 s. 3—Ordinance No. 2 of 1877, a. 26,sub-s. 8, as amended by Ordinance No. 21 of 1000—Due attestation—Notary empowered to attest deeds in English—Duty of notary to readover and explain the instrument—Interpretation in Sinhalese —Execution ofwill by undue influence—Burden of proof as to use of undue influenceby coercion or fraud—Opinion of assessors given many days after close ofcase.
Where a notary public, authorized to draw, authenticate, and attestdeeds or instruments in the English language only, did not. read out thelast will he had drawn for a testatrix in English, but interpreted andexplained it clause by clause to her in her own language, which wasSinhalese, andwhere oneof the attesting witnesses was inthenext
room during the greater part of the interpretation, bpt at such a distancethat he could see the testatrix and those around her through the opendoor which connected the two rooms, and could have heard what was saidto and by the testatrix if he had given ear to it,—
Held, that as, in terms of the Ordinance No. 7 of 1840, section 3, thewill had beenattested bya notary public and two witnesses,whosaw
the testatrix sign and thereafter subscribed their own names, all fourpersons being present together, it was duly attested.
Since “■ attestation " means execution of a deed or will in the presenceof witnesses, and " attesting witness '' means a person who has seen aparty execute a deed or sign a written agreement, section 3 of theOrdinance No.7 of 1840must be construed as dealing onlywiththe
authenticationand proofof the bare fact of signing bya party.
Beyond that it contains nothing designed or calculated to secure theunderstanding by the party of the contents of the instrument, nor any-thing implying knowledge by the witnesses of such contents.
The notary need not necessarily know anything of the contents of thewill which he attests.
Sub-section 8 of section 26 of Ordinance No. 2 of 1877, which forbidsthe notary to attest any deed or instrument whatever in any case inwhich the person executing the same shall be unable to read the same,unless and until he shall have read over and explained the same or causedthe same to be- explained in the presence and hearing of such person andof the attesting witnesses thereto, does not amount to an enactment that,in failure of the requirements of this rule being observed, the deed orinstrument should be deemed not duly attested.
Where it was alleged, in opposition to the will propounded, that oneof the sons of the testatrix, who had the management of her affairs andpossession of her title deeds, had certain deeds of gift executed in his• favour, and endeavoured to take advantage of her weak state of health toget her to execute a will which she declined, but eventually by Undueinfluence he had obtained the will in question,—
Held, that where it has been once proved that a will has been dulyexecuted by a person of competent understanding and apparently a freeagent, the burden of proving that it was executed under an undueinffhence is on the party who' alleges it.
The equity rule in reference to gifts inter vivos, that the party benefitedmust show affirmatively that the other party could have formed a freeunfettered judgment in the matter, does not apply to the making of wills.
1004.
July 18.
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1904.
July 18.
To vitiate a will the influence used must be either by coercion orfraud.
Where it was complained that the assessors, who were associated with,the District Judge to hear the case, gave their opinion some days after theconclusion of the evidence and without the facts being recalled to theirminds by a summing up of the Judge,—
Held, (hat this was not a fatal irregularity.
T
his was an application for probate of the last will of oneMrs. Jeronis Peiris by her executors, Mr. H. A. Pieris,
Mr. Charles Pieris, and Mr. E. L. F. de Soysa. The first petitionerwas a son of the testatrix, and the second and third were her sons-in-law. ' The application was opposed by four others of herchildren upon grounds set forth in an affidavit sworn to by. thefirst respondent, Mr. B. S. Pieris, as follows:—■
“ That his mother, the testatrix, was for some weeks before herdeath suffering from diabetes; that on Saturday, 28th February,1903, she was so ill that her doctor had given up all hopes of her ,recovery; that on Sunday morning, 1st March, she was unable torecognize or respond to him; that on that evening her conditionwas worse, so that she could not have been in a sound state ofmind to have given instructions for the making of a will; that•since 1897 she was more or less under the control of his brotherHarry, who was her. attorney and lived in the same house with herfor the last two years; that he had-more than once endeavoured byundue means to induce her to make a will devising to him a largeportion of her estate; that he had instructions drawn out for alast will to be signed by their mother, which she declined toexecute in accordance therewith; and that when the old lady hadbecome too weak and feeble his brother Harry by undue meanshad prevailed upon her to consent to a will being prepared; andthat the will now propounded is the will so prepared and signed. ”The will was drawn up and attested by Mr. Arthur Alvis,proctor and notary, and the two'witnesses thereto were Mr. R. F.de Saram and Mr. T. Sanmugam. Instructions for the will werealleged to have been given by the testatrix on 27th February, 1908,and the draft will was prepared and explained to her on 28thFebruary. The will • was signed on Sunday, 1st March, shortlybefore 4 p.m., and the testatrix died on Wednesday, 4th March,shortly after noon. It was a lengthy will dealing with propertyvalued at about Bs. 2,000,000.
'it was urged for the opponents of . the will that on the authorityof the rule laid down in Tyrell v. Painton, L. R. {1894) 151, whichin a case of suspicion of undue influence requires affirmative *proofthat the testator actually knew and approved of the contents of thedocument, Mrs. Jeronis Pieri&’s will should be rejected.
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J*
The Additional District Judge, Mr. Felix Dias, and the threeassessors drawn and sworn to try the issues of fact in this casewere unanimously of opinion that the testatrix was of sound mindwhen she signed the will, and that there was no undue influenceor coercion exercised over her.
On the question of law which was the third issue in the case,whether the will was duly executed and attested according to law,the District Judge held as follows:—
“ This question as to the legality of the execution of this willwas not one of the issues on which this inquiry .commenced. Itarose from a statement made by Mr. Charles Pieris in the courseof his evidence that at the time the notary was explaining the willto the testatrix Mr. Sanmugam, one of the attesting witnesses,was not in the room. It appears that this was the case, for whenMr. Alvis began to explain the will seated by the side of the lady'scouch, Mr. De Saram, who was standing near Mr. Sanmugam,thinking it advisable that the latter should not hear the particularsof the will, whispered to him to go into the next room till thereading was over. Mr. Sanmugam at once stepped into theadjoining room, which was also a bedroom, with an open doorwaybetween the two, and stood in the middle of it talking to Mrs. H. A.Pieris, who happened to be there. The testatrix and the notarywere both visible from the place where he stood, and he couldhave heard Mr. Alvis's explanation of the will if he chose to listen.The distance from the old lady's couch to the spot where Mr.Sanmugam stood was only some 24 feet, and we have examinedthe place for ourselves. We are quite satisfied with the truth ofwhat the witnesses have stated on this subject. After Mr. Alvisfinished his explanation, and while the lady was being assisted tosit up and sign the document, Mr. De Saram beckoned .to Mr. San-mugam with his hand to come in, and he at once joined them.The testatrix, the two witnesses, and the notary then signed thewill one. after the other, and the party left. These are the factsof the case, and we have to apply to them our law on the subjectof wills and discover whether there is anything in it which isfetal to the validity of this document as a will.”
The District Judge found that under the law ^of Ceylon the willwas duly attested.
The opponents of the will appealed from this order.
The case was argued before Wendt, J., and Middleton, J.
Eardley Norton (Walter Pereira, E. W. Jayawardene, and G. B.Elliott with him), for appellants.
Dorrihorei, K,G. {Sampayo, K.G., and H. J. G. Pereira withhim), for respondents.
1904.
July 18,
Gut. ado. vult.
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1904. The following judgment of the Supreme Court, which wasIS. jointly prepared by the two Judges who heard the appeal, wasWhndt & delivered on 18th July, 1904:—
Middleton,
JJ*Thi6 is an appeal against a decree absolute of the District Court
of Colombo granting probate of the last will of Caroline FranoinaSoysa, widow of the late Mr. Jeronis Pieris. The will, whichis dated 1st May, 1903, was propounded by the three executorsnamed in it, viz., Messrs. Henry Alexander Pieris (second son of thetestatrix) and Charles Pieris and Edwin Lionel Frederick de Soysa(her son-in-law). To the executors' petition the other survivingchildren of the testatrix were made respondents, viz., (1) BichardStewart Pieris (the eldestson),(2)LambertLouis Pieris, *■ (3)
George Theobald Pieris, (4) EmilyHortenszMendis, and (5)
Caroline Lucilla de- Soysa,wifeofthe thirdpetitioner. Annie
Engeltina, the wife of the second petitioner, had predeceased hermother, the testatrix, leaving issue one daughter, Annie Elsie.The petition, which disclosed that the testatrix died on 4th May,1903, was supported by the affidavit of the petitioners and by theaffidavit of the notary and witnesses who had attested the will,and the Court on 17th March, 1903, made a decree nisi in terms ofthe prayer of the petition.Thefirst, second,third, and fourth
respondents opposed the grant of probate on the grounds setforth in the affidavit of the first respondent, R. S. Pieris, dated17th April, 1903. Counsel for parties on 28th April agreed *uponthe following issues:—
Had testatrix at the time of the alleged execution of thewill a sound and disposing mind ?
Was the execution of the said will due to coercion andundue influence exercised on the testatrix by the petitionerH. A. Peiris ?
The trial began on the 12th May, 1903. On the 29th May, afterthe examination of the first witness, Mr. Charles Pieris, was com-■ pleted, an additional issue was, upon the application of the res-pondents, framed in the following terms: —
Was this will duly executed and attested according to law ?It i6 convenient to consider this issue first of all. The factsbearing upon it are as follows. The testatrix was a Sinhaleseable to read and write her native language, but knowing nothingi)t English beyond the abHity to sign her name in Englishcharacters. The will was in English and was drafted by Mr.Arthur Alvis and engrossed by one of his clerks. It was attested byMr. Alvis as notary public, and two witnesses, Mr. B. F. de Saram(a proctor and notary and Mr. Alvis's partner) and Mr. Tambyahfianmugam, a broker. Mr. Alvis was a proctor, and also held a
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warrant authorizing him as notary to draw, authenticate, and attest 1904.deeds or instruments in the English language alone. In his 1$.attestation clause to the will he certified, following the form Wendt &prescribed by Ordinance No. 2 of 1877, section 26, sub-section 28, asamended by Ordinance No. 21 of 1900, section 8, that the will wasread over and explained by him to the testatrix in the presenceof the two subscribing witnesses, all three being known to him, andwas signed by the testatrix and witnesses and himself as notaryin the presence of one another, all being present at the same time.
The evidence showed that Mr. Alvis did not read out the willin English to the testatrix, but interpreted and explained it clauseby clause to her in the Sinhalese language, with which she waswell acquainted; that while this was being done, Mr. De Saramwas standing close by and heard and understood all that was said,but that during .the greater part of that time Mr. Sanmugam wasin the next room, but at such a distance that he could see thetestatrix and those round her through the open door which con-nected the two rooms, and could have heard what was said to andby the testatrix if he had given ear to it. The explanationconcluded, Mr. Sanmugam returned to the testatrix’s bedside, andhe, the notary, and Mr. De Saram saw her sign the will, andthemselves thereafter signed it in her presence and in the presenceof each other.
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Upon these facts the opponents of the will contend that it wasnot read over, because reading over means reading out the actualwords in which the instrument is couched, nor “ explained, " because
that means explained in the language in which the instru-ment is drawn, and the will was not so explained but interpretedinto Sinhalese, and because (2) Mr. Alvis was not authorized to usethe Sinhalese language, but only the English, and that only to thosewho understood it. Lastly, it is objected that if the will was inpoint of law explained, it was not explained in the presence of thewitnesses, inasmuch as Mr. Sanmugam was not then present.
The law which prescribes the formalities necessary for theexecution of wills is the Ordinance of Frauds and Perjuries, No. 7of 1840. Section 3 of that Ordinance runs as follows:M No will,
testament, or codicil containing any devise of land or otherimmovable property, or any bequest of movable property, or forany other purpose whatsoever, shall be valid unless it shall be in'*writing and executed in manner hereinafter mentioned; (that is tosay) it .fhall be signed at the foot or end thereof by the testator, orby some other person in his presence and by his direction, and suchsignature shall be made or acknowledged by the testator in thepresence of a licensed notary public and two or more witnesses.
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1904.
Jtdp 18.
Wendt &1&D9X0IOK,JJ.
who shall be present at the same time and duly attest suehexecution, or. if no notary shall be present, then such signatureshall be made or acknowledged by the testator in presence of fiveor more witnesses present at the same time, and such witnessesshall ^subscribe the will in the presence of the testator, but no formof attestation shall be necessary."
. The petitioners says that in a question as to due execution thissection is all that should be looked at, and that, the evidenceestablishing that the testatrix’s signature was made in the presenceof a licensed notary public and two witnesses present – at thesame time, who thereupon subscribed the will in the presence ofthe testatrix and. of each other, the will was duly executed. 'Butthe respondents contend that in view of the requirement thatthe notary shall/* duly ” attest the execution, we have to look at theexisting enactments which regulate the practice of notaries, to seewhether the notary in this case acted conformably to them in hisattestation, and that if he did not he cannot be said to have dulyattested the will. Accordingly, they rely on sub-section 8 ofsection 26. of Ordinance No. 2 of 1877, as amended by OrdinanceNo. 21 of 1900, section 8 of which forbids the notary “ to attest anydeed or instrument whatever in any case in which the person
executing the same shall be unable to read the sameunless
and until he shall have read over and explained the saipe orcaused the same to be explained,,in the presence and hearing ofsuch person and of the attesting witnesses thereto."
This sub-section is a re-enactment of the original sub-section 8of the Ordinance of 1877, which in turn was a re-enactment ofsub-section 8 of section 2, of the older Ordinance No. 16 of 1862with the omission of the words " if need be," which occurredbefore the word “ explained The sections quoted from theOrdinances of 1852 and 1877 contain a number of '* rules andregulations " which it is declared to be the duty of every notaryin this Island strictly to observe and act in conformity with.They contain provisions designed to secure among many, otherdetails the perfect understanding of the contents of instrumentsby parties executing them, the due identification of such partiesby witnesses who know them, and the prevention of frauds.In each Ordinance the section renders a notary violating the rules^guilty of an offence and punishable with fine, but with the provisothat “ no instrument shall be deemed to be invalid in consequenceof the non-obseryance by the notary of the foregoing rules orany of them in any matter of form, " to which i6 addedc in theOrdinance of 1877 and the Ordinance amending it the words,—** but nothing in this proviso contained shall give any validity to
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any instrument which may be invalid by reason of the provisionsof any other law not having been complied with.’’
Now, the Notaries Ordinance contains no affirmative enactmentrendering invalid any instrument attested by a notary and wit-nesses in a manner which contravenes the ** rules and regulations.”To prove such invalidity the Ordinance of Frauds and Perjuriesmust be invoked, which relates to deeds inter vivos as well as towills. The question is whether “ duly attestedby a notary means*' attested in accordance with the rules, for the time being in forceand binding upon the notary/’
Wharton’s Lexicon, citing 2 Blackstone’s Commentaries, 307,defines “ attestation ” as " the execution of a deed or will in thepresence of witnesses,” and an ” attesting witness ” as ” a personwho has seen a party execute a deed or sign a written agreement.”He then subscribes his signature for the purpose of “ identificationand proof at any future period.” In the light of these definitionsit will be seen that the Ordinance No. 7 of 1840, section 3, dealsonly with the authentication and proof of the bare fact of signingby a party. Beyond that it contains nothing designed or calcu-lated to secure the understanding by the party of the contents ofthe instrument nor anything implying knowledge by the wit-nesses of such contents. There is nothing to prevent a testatorproducing to the notary and witnesses a document and, withoutreading or showing its contents to them, telling them that it ishis last will, and then in their presence making or acknowledginghis signature and asking them to attest it—somewhat in the wayin which “ close ” wills used to be executed in former days (seeTennant's Notary's Manual, Ed. 1844, p. 124). Section 15 of thesame Ordinancev which requires notarial instruments to be executedand attested in duplicate, expressly excludes wills, and hence theexpress exemptions of wills from the provisions of all the Nota-rial Ordinances, beginning with No. 16 of 1852, which requirethe transmission of duplicates to the District Court or Registrar ofLands. The notary therefore need not necessarily know anythingof the contents of the will which he attests.
The Ordinance of 1840 no doubt advisedly omitted to make anyprovision directed to securing that a testator knew and appreciatedthe contents of the paper he was signing, because as we have said,it was dealing with the bare formalities of execution, and it wasrendering a will absolutely invalid if those formalities were not>observed. Very wisely the Legislature had prior to the Ordinanceof 1840 enacted rules, and subsequently it enacted further rules, forthe regulation of notaries, and with the view of securing dueappreciation by the grantors of deeds of the nature and effect of
1004.
July 18.
Wbhm &MmDUTOH,
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1904.
July 18.
Wendt &
£fn>DLBTON,
JJ.
their acts, but these rules nowhere* declared that the violation ofthem would invalidate a deed, and without such an express enact-ment. we do not think we can imply one in matters of substancefrom the saving proviso that irregularities in matters of formshall not violate the deed.
There is no subsequent Ordinance which in unmistakablelanguage declares that “ due attestation ” in section 3 of theOrdinance of Frauds and Perjuries shall mean the observanceof such and such formalities. If there 'were, then obviouslywe should be bound to hold that in the absence of any ofthese formalities a deed was not duly attested. But in ouropinion the notaries’ rules and regulations do not amount tosuch an enactment. Neither is there any provision in the Ordi-nance of Frauds and Perjuries or the Notaries Ordinances whichrequires that an instrument shall be drawn in a language under-stood of the person executing it, or that, if expressed in an unknowntongue, it shall be interpreted to him. The meaning of sub-section8, it is said, is that the reading over and explaining must be in thelanguage of the instrument. The argument therefore leads to'this absurdity, viz., that if Alvis had read the will over in Englishand explained it in that language the attestation would have beenbeyond cavil, although the testatrix had not understood a wordshe heard.
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None of the local cases cited are very directly in point on thequestion in hand. We shall mention them in order of date..
In D. C., Colombo, 5,036, Morg. Dig. 260 (1835), it was held thatthe omission to execute a deed in duplicate, as required ’bj Ordi-nance No. 7 of 1834 (the first Ordinance of Frauds and Perjuries),did not render the deed invalid. But the provision requiring aduplicate was contained, as in the Ordinance of 1840, in a separatesection from that dealing with attestation, and had no wordsdeclaring the omission fatal.
In D. C., Kandy, 18,633, Austin, 97 (1846), a deed executedin Kuruneg&la was attested by a notary licensed to practise inthe Central Province. The District Judge on a demurrer said:
There is nothing contained in the Ordinance No. 2 of 1839or Ordinance No. 7 of 1840 referred to in the argument whichdeclares a deed to be void. for being attested by* a notary otherrthan the notary of the place wherein the deed has been exe-cuted, though the notary may be subject to have his warrantrecalled if he. exceeded hi6 authority. Non constat also thatthe notary who had styled himself a notary of the Central Province
may not be likewise a notary of KurunegalaThis is a matter
for evidence, andcannot be ground for .demurrer.” The
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<**
Supreme Court merely ** disallowed the demurrer for the reasonsgiven by the District Court.'*
In D. C., Kandy, 22,401, Austin, 139 (1849), the question was thesame as in Morgan's Digest, and was decided in the same wayBut it would seem that the grantor had signed a blank 11 ola, " whichwas afterwards filled up. The District Court, however, held thatas there was evidence that the grantor acknowledged theexecution of the deed in the presence of the notary and witnesses,that was a sufficient compliance with the Ordinance (gote here thedifference between section 2 of the Ordinance No., 7 of 1834 andsection 2 of the Ordinance of 1840). In appeal this Court affirmedthe decision, but no reasons are reported.
In D. C., Negombo, 5,742, Grenier, 39 (1874), the due attes-tation of a mortgage was challenged in appeal because thenotary's attestation clause did not state the names and residencesof the witnesses, as required by Ordinance No. 16 of 1852.section 21, sub-sections 6, 7, and 20, and therefore the bondwas not V duly ’* attested. The respondent relied on the provisoto the section, and it would seem that the question was notraised at the trial. This Court affirmed the judgment upholdingthe instrument, but again no reasons are reported. Whatthe facts were as to the execution of the bond we do not know.The case may perhaps be taken as establishing that an informalityin the attestation clause does not render the instrument invalid.
In Appuhami v. Mohotti, Ram. (1876) 299, the questionrelated to a will attested by a notary and two witnesses, the attes-tation clause stating that they and the testator all signed in eachother’s presence. The proof showed, however, that the witnessesdid not sign in the testator’s presence, and the will was declared in-valid. Clarence, JM after expressing the opinion that by the Boman-Dutch Law the witnesses had to append their attestation in thepreseuce of the testator, held that the last words of section 3 ofthe Ordinance of 1840, as to subscription in the testator's presence,and as to no form of attestation being necessary, applied as wellto notarial wills as to those attested by five witnesses. TheOrdinance No. 16 of 1852, to which he had • been referred inargument, he declared to Rave “ no bearing on the matter."
In Punchi Baba v. Ekanayake, 4 S. G. C. 116 (1881), the SupremeCourt extended this decision to the case of deeds inter vtvos, to,which section 2 of the Ordinance of Frauds and Perjuries applied.Dias, JM followed the opinion of Clarence, J., and said : " We cannotsee andifference in principle between an ordinary notarialdeed and a notarial will, and we hold that the deed in questionshould have been signed by the attesting witnesses in the presence
1904.
July 18
Wendt &MtddlbtonJJ.
1004.July IS.
WBNpT &MiddletonJJ.
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of the grantor, and this view is supported by the OrdinanceNo. 16 of 1852, clause 21, sub-section 5, which requires that allnotarial instruments shall be executed by th6 grantor and theattesting witnesses in the presence of the notary and in thepresence of one another/* The question there was one affectingthe mode of attestation alone in the sense in which we havedefined it; and Dias J., does not rest his decision on the Ordinanceof 1852, but on the case of Appuhami v. Mohotti, and he refers tothat Ordinance merely to show that the Legislature in prescribingrules for the evidence of notaries took the same view of the;matter. He therefore lends no support to the appellant’s conten-tion that in a question as to “ due attestation ” we must resort to thenotarial rules of practice for the time being in force. And I donot think that Grenier, A.J., meant to convey more than hiscolleague had said, by his dictum that the words 44 duly attest,,when read in connection with section 21, sub-section 5 of theOrdinance No. 16 of 1852, must I think be taken to mean thesigning by the witnesses in the presence of each other and of boththe grantor and the notary.”
Peine v. Fernando, 9 S. G. G. 146 (1891) y was the case of a willin the Tamil language attested by a notary authorized to practise inEnglish alone, and therefore forbidden by sub-section 20 of theOrdinance of 1877 to attest in any other language. The propo'undersof the will were content to rely on the fact that the notary had in fact11 attested in English, ” because his signature and attestation clausewere in that language, and they did not raise the question as to theeffect of the Ordinance of 1877 on that of 1840. This Court sup-ported the will, and Clarence, J., said :44 We need not for the
purposes of this appeal speculate as to what details are included inthe 4 attestation ’ as contemplated by the Ordinance, or to what lengththese details should be transacted in the language named in thenotary’s warrant. All that I think it necessary to say upon thisappeal is that I can seen no impossibility in a Tamil will being attestedin English; that this attestation purports in facie to have beenattested in English, and there is no material advanced by the opposi-tion to the contrary.” The Ordinance of 1900 has added a furtherprohibition, which was not part of the law at the time of this decision,viz., that the notary shall not attest any deed drawn in a languager other than that in which he is authorized to practise. Had thisbeen in the older Ordinance, the decision in that case would havebeen of some direct assistance to us in the present question, butso far as it goes it is not inconsistent with the view we havealready expressed as to the construction '6f section 3 of theOrdinance No. 7 of 1840.
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In Kiri Banda v. Ukkuwa, 1 S. C. B. 216 (1892), the question 1904.■was whether the notary was an attesting witness within themeaning of the rules of evidence, which require an attesting witness Wbnot &to be called in order to prove an instrument requiring attestation.
The Court held that he was. Burnside, C.J., said: “ To this deedis ‘appended the word ‘ witnesses, 1 and under it are the signaturesof the two witnesses and of the notary, J. H. E. Mudianse, notarypublic. This seems to me to be all that the law requires. Butbesides this the notary has signed the formal attestation which,tiie rules contained in the Notaries Ordinance, No. 16 of 1852, laiddown for the guidance of notaries. The learned District Judgehas said that the first signature below that of the witnesses wassurplusage. “ I emphatically hold that it was all that was necessaryto do in satisfaction of the provision of the Frauds Ordinancerequiring the attestation by a notary and two witnesses, becausealthough the Notaries Ordinance directs that there shall be a formalattestation of the notary which shall contain many particulars,yet it has been careful to say that the omission of this formal attesta-tion or any of its particulars shall not make the deed invalid. Itpenalizes the notary, but does not touch the validity of the deed/'
We believe there is an older case in appeal from the District Courtof Colombo, upon which we have been unable to lay our hand, andin which it was held that the absence altogether of an attestationclause did not affect the validity of a notarial deed, as the signaturesof the notary and witnesses appeared at the foot of it.
In Lokuhamy v. Don Simon {3 N. L. JJ. 317) Bonser, C.J., madethe remark obiter that a last will was included among the instru-'ments of which Ordinance No. 2 of 1877, section 26, sub-section12, requires a notary to preserve a draft minute or copy, and thecase'was cited to us to show that the expression “ deed or instru-ment ” in sub-section 8 of the amended section also includes awill. If it were necessary to decide the point we should beprepared to hold that it does, especially in view of sub-section 25which expressly speaks of a will or codicil as an instrument, whichundoubtedly it is. No supposed practice of notaries to treat sub-section 8 as not applying to wills could overricle the clear effectsof' the words.
■ For the reasons already given we think that the will in question,being attested by a licensed notary public and two witnessedwho saw the testatrix sign – and thereafter subscribed their ownnames* all four persons being present together, was duly attestedas required, by law. Whether it was duly executed in the sense ofwhether the testatrix understood and approved of what she wasSigning is another part of the case.
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1004. In the view we have taken it is unnecessary to consider theJtJy W. signification of the terms ** read over/' " explained," and " in theWbkbt& presence of the witnesses."
Middiatok,.
jj. We come now to the first and second issues in the case.
Jeronis Peiris, the husband of the testatrix, died in July, 1894*and left a joint will with his widow, the present testatrix, dated.9th February, 1894, which, after declaring that they had by certaindeeds settled considerable property on their eldest son Bichardand their eldest daughter Annie, gave specific devises of housesand property to each .of the seven children and devised the entireresidue—movable and immovable—to the survivor, with full powerto dispose of by will or otherwise in such manner as such survivordeemed proper, but providing that if the survivor died withoutdisposing of it, it should be divided share and share alike amongstall the children, the child or children of a deceased child to takeper stirpes.
We have recited the terms of the joint will, as we consider ithas some bearing on the questions we have to decide.
The action for probate was tried in the District Court with threeassessors, and they unanimously found on the first issue that thetestatrix was df sound mind at the time of execution of the wifi;on the second issue that the execution of the will was not due tocoercion or undue influence exercised on the testatrix by< thepetitioner, H. A. Pieris; on the third issue, as to whether the willwas duly executed and attested according to law, the DistrictJudge found in the affirmative, but the assessors were unable—and properly so—to express any satisfactory opinion. On thespecial question submitted to them by the District Judge, theyunanimously found that the will was signed by the testatrix and byMr. Sanmugam at tbe same time and place and in the presence ofeach other.
The points raised by the able and learned counsel who repre-sented the appellants were not very systematically formulated orarranged, but we have discussed them more or less in the orderthey were presented to us.
r
Before examining into the points raised in the case it is advis-able to remember that the evidence shows that tbe person whoseconduct and position is most impugned in this case, viz., Mr. H. A.pieris, was the favourite son of the testatrix, who managed herbusiness for her and lived at Elscourt, the family house, with hismother from 1901 to her death. Charles is also not a stranger,but the husband of the deceased daughter Annie, whose' childElsie, since dead, was a favourite of the testatrix and also generallylived at Elscourt.
( 191 )
Thia was practically admitted by counsel for the appellants, as
Ian that the children were not all on good terms with each other. JulyIt is also necessary to remember the position taken up by counselfor the appellants. As regards the witnesses called, Charles wasjj.
challenged and accused of falsehood, and Spittel, the clerk,
Dr. Rockwood, and Sanmugan were charged with falsehood, andnothing practically said against Alvis, De Saram, or any of theothers. According to Spittel, the clerk, whose evidence we shallrefer to later on, the testatrix took a shrewd and lively interest ,in her business, frequented the office, and knew all her affairs, andCharles says she was an active, strong-minded person of businesscapacity.
The opposition to the will apparently springs from the allegeddisproportion between the shares of the children benefiting underit. It is alleged that if the properties are valued as the opponentssay they should be, Harry and Charles’s daughter Elsie will receivea considerable amount more than Richard, Lambert, or Theobald.
If, however, the valuations as given by the executors in theschedule are taken there is no great difference, and in fact Mrs.Caroline de Soysa and Emily Mendis would apparently get almostexactly the same sums. It is noticeable that all the children areprovided for under the will, and it was elicited from Charles (page79) that between the 27th February and the signing of the willthe testatrix did not lead him to believe that it was either herintention or her wish to make an uneven distribution of herproperty. It seems, however, that a very considerable amount ofproperty was conveyed by deeds of gift, some eleven parcels toHarry in the year 1900, some three parcels also were conveyed toLambert, two to Elsie, two to Caroline, and one between Lambertand Emily. Those conveyed to Harry and Elsie were accepted, butnot the others, the other donees not being even aware of the executionof tiie deeds of gift. With these deeds of gift- Harry’s and Elsie’sshares considerably overtop the shares of the other heirs, but, evenif so, such preference, considering the relationship of the parties, wasnot unnatural, and is possibly to he accounted for without recurringto undue influence involving fraud or coercion. •
The affidavit of Richard Pieris in opposition to probate of thewjll alleges incapacity on the part of the testatrix to speak or recognizehim, her son, on Sunday, 1st March, and avers that Harry, having the,sole management of her affairs and possession of her title deeds, hadcertain deeds of gift executed in his favour, and endeavoured to takeadvantage of her weak state of health to get her to execute a will,which she declined, but eventually by undue influence he had obtainedthe will in question.
( 192 )
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July 13.
Whhpt ftMiddletonJJ.
It is suggested by counsel for the appellants that Charles andHarry, with,,the corrupt assistance of Dr. Bockwood, have beenenabled to obtain this will from their mother as though she werea free and capable testatrix. The suspicious circumstance mostemphasized, and in fact almost the only one pointed out, was thatHarry Pieris, who from Charles Pieris’s evidence must have beenas well if not better acquainted thap the latter with the testatrix'sbusiness and testamentary intentions, was not called as a witness,and we were asked to presume that his evidence would thereforehave been unfavourable to the propounders of -the will.
Counsel for the propounders took upon himself the entireresponsibility of not calling this witness, repeating his assertionmade at an early stage in the trial that he would not put Harryinto the box until there was some evidence led against him ofundue influence, which he denied. No action or saying ofHarry's could be pointed to as indicating any actual fraudulentinfluence on his part, but the argument was that he was in aposition to do evil, and evil having been done in the shape ofundue preference given to him both under the deeds of gifts andthe will, it was his duty to come forward and explain how thesethings occurred, or the conscience of the Judge would not besatisfied as to his position in the matter. We think that probablyif we had been trying the case in the Court below we should haveintimated or obtained an intimation from the assessors that (Harryshould be called, but, looking at the fact that Charles was cross-examined mos.t minutely for eleven days without disclosinganything that directly pointed to a corrupt conspiracy betweenhimself, Harry, and the alleged medical conspirator, and that-Alvis’s evidence is accepted, we are inclined to think that theground for suspicion as regards Harry's absence is not a cogent one.
The selected points counsel referred to in his reply, which hesubmitted Harry was called upon to explain, were (1) his presenceat the interview with Caderamen when B was read for thefirst time; (2) his absence at the interview when arrangementswere made for the equalization of the children's share (page 19);
his sending Sp(ittel with the deeds to Caderamen on the 24thFebruary, 1900 (page 21), and his sending Sieket to have the deedsreturned; (4) his part in the interview in May, 190^, betweenAlvis and the testatrix; (5) his noting alterations on B 2; (6) his(dealing with the Bambalapitiya plans (page 71); (7) the testatrixexecuting deeds at his house in July, 1900; and (8) his gettingdeeds of gift for so large an amount of property as Rs. 656,000; (9)his putting donees' names on the back of the Dunkanawa plans (page74); (10) his getting his mother's votes in the Municipality for Alvis.
( 193 )
It seems to us that all these alleged points o£ suspicion, except1904.
the absence from the family interview, may be accounted for bythe fact that Harry held his father’s power of attorney, and was his Wendt tomother’s attorney, amanuensis, and favourite son, that she could Mmraaxoirnot write or speak English, and was practically obliged to havesome one whom she could trust to do so for her. As regards Charles’sevidence, it was pointed out that he had given three explanations asto why Fincastle was included in the will • had made a false statementin saying he got the title deeds sent to Caderaman back from L. B.
Fernando; had contradicted himself as to the testatrix speaking tohim often about her will (p. 489); and was contradicted by Alvis as tohis‘seeing B at Alvis’s house after the latter took it there. We donot attach much importance to these discrepancies in the explanationsas regards Fincastle, a subject which we shall discuss more fully lateron. The witness was apparently trying to speak, as witnesses herewill speak, with a profession of knowledge that he did not possess,and consequently being acutely cross-examined got into difficulties.
We do not think he is really speaking falsely, but rather trying toaccount for something which he felt he ought to account for and hadnot the knowledge to do so.
As to the statement about getting the deeds back from L. B.
Fernando, he admitted (page 21) that his answer in examination-in-chief was incorrect and a lapse of memory.
With regard to speaking about the will, there appears to be a con-tradiction, unless the witness was purposely distinguishing betweenthe words " work ” and “ will, ” which is quite, possible, as he isevidently a man acute and self-possessed.
As to the contradiction between him and Alvis as to seeingdocument B at Alvis’s’ house while Alvis was preparing the will,
Charles asserts it' and Alvis denies it. There is no occult reasonwhich suggests itself for the denial by Alvis or the assertion byCharles, and it may be that one of them has forgotten. Lookingat Charles’s evidence as a whole, and considering that he wasunder examination for about fifteen days, , during eleven ofwhich he was subject to the cross-examination of a hostileintellect more powerful than his own, and that these areapparently the only exceptions taken to his evidence, we see noreason to doubt that he was a witness of the truth to the best ofhis ability.
Spinel’s _ evidence is also impugned on the ground , of falsehoodwith respect to the insertion of the dates “ 17-2-1900 ” and ” 29-6-1900 ” on B 2, the omission of ” schoolroom,” or ” 5, Park street,”from B 2 and the will, and his explanation as to Lathpandura and
7J. K. B 6920 (4/61)
( 194 )
1904. Attanagala (pages 195 and 930), and he was alleged to have been
July 18. bribed by the doubling of the legacy left to him.
Wkndt & We shall show in another place later on how, in our opinion,Spittel’s evidence as to the insertion of these dates is supported byour conclusion that B 2 was in existence in 1900.
We see no reason to doubt Spittel when' he says that “ 5, Parkstreet,’’ was omitted by mistake.
His explanation as to Lathpandura and Attanagalla are not con-sistent, but it appears he was ill at the time of, his examination, andmay suffer from the common habit or fault of witnesses in this Islandof giving some reason or explanation from their imagination, when the. real answer would be “ I do not remember ” or “ I do not know. ”
As to the alleged bribe, it does not appear to us unnatural thatSpittel should, as an old servant, have called attention to the smallamount of his original legacy, or that the testatrix should haverecognized the justice of his complaint, nor that it should be donethrough Harry.
We now come to consider whether the appellants have raisedany doubt in our minds that the District Judge and assessors weremistaken in finding that the testatrix was'of sound mind.
Exception was taken to the words “ sound mind,” it being con-tended that it did not necessarily mean of sound disposing mind.
We, however, cannot help thinking that the District Judge andthe assessors intended to mean of sound disposing mind, as theirfinding was in connection with the dispositions under the will.
Counsel for the- appellants does not suggest that the testatrixwas of unsound mind, but say that the will was not hers, inasmuchas she was suffering from the prodromal symptoms of diabeticcoma, which would cloud her will, memory, and judgment to theextent’ of preventing her from appreciating the value and amountof her property, the moral obligation she was under with regard toits disposal, and that she would not be able to grasp who wastaking and what shares of her property were given, and thuswould in consequence be most susceptible to undue influence.
i
There is no issue as to this condition of mind, as the learnedcounsel himself admitted.
We do not think it necessary, considering the views we hold, to gorat great length into our reasons for agreeing with the District Judgeand his assessors.
We feel it necessary, however, to refer to the evidence of Dr.Rockwood in this connection, which has been forcibly impugnedas false and fraudulent. There is no doubt that the testatrix diedof diabetic coma, and that fact has been grasped by the appellant’s
( 195 )
counsel with all the ability he possesses to found the theory thatthe recognized prodromal symptoms of that malady must have.developed themselves on or about the 27th February, 1908, which,he says, Dr. Rockwood’s prescriptions, produced before the Court,prove.
Xn the first place, there is not a scintilla of evidence to foundany suspicion that Dr. Rockwood, who is a man most eminent inhis profession and of high and unblemished character in that pro-fession and in his public and private life, was concerned in themedical treatment of the testatrix in any other way than he wouldhave been towards any other patient.
Dr. Rockwood distinctly denies that his treatment was for theprodromal symptoms of coma. We are not prepared to disbelievehim when he says so, even if Dr. Thomasz, whose opinion iscertainly entitled to weight, may deem that some of the dosesordered by Dr. Rockwood were of an heroic character, or that thetreatment was hot what Dr. Thomasz would have adopted underthe. assumed circumstances.
Dr. Thomasz was also certainly of opinion that when he saw thetestatrix on the 3rd March her mental condition was still intact,although he suspected that coma would come on sooner or later.
Dr. Rockwood was the regular medical attendant of the testatrix,and’ presumably better acquainted with her system and constitutionthan Dr. Thomasz, and we should attach more weight to the former’sopinion as to the mode of treatment proper in her case than to thelatter’s.
Even if the cross-examination of Dr. Rockwood may be said toshow that his treatment of the patient was not altogether incon-sistent with apparent knowledge on his part of pending prodromalsymptoms of diabetic coma, we are not prepared to accept thatview in the face of the doctor’s denial and in the absence of anyevidence to found suspicion of his good faith in the matter. Asregards Dr. Paul’s evidence, counsel for appellants was preparedto be judged without reference to it.
In our judgment that evidence was entirely opinionative, and itsweight depended completely upon premises which were not provedto exist in case of the testatrix.
Much emphasis was laid on the monosj'llabic form of assent usedby the testatrix in relation to her instructions for the will, but^ itseems to us that in taking instructions for any will involving thedisposal of numerous specific parcels of property the legal advisershould ask questions which might constantly require such answers.
Again, it appears to have been rather supposed that the testatrixmight have exhibited a higher form .of conversational powers and
1904k
July 18.
Wjsndt &
MiDDlarroN,
JJ.
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July 18.
Wend x tcMiddie ton,JJ.
greater signs of culture and attainment than she manifested fromthe 27th February to 1st March.
We are not aware from anything in the evidence or the positionin life of the testatrix that there is ground for such a supposition.
The testatrix was apparently a plain intelligent woman ofbusiness who knew her own mind, but would not at any time, evenwhile in the best of health, be vivacious or particularly sprightlyin her conversation, and especially when not feeling well, as admit-tedly was the case during the days of the preparation and signingof the will.
We see no reason from the evidence of the witnesses called forthe propounders to doubt that the testatrix on the 27th and 23thFebruary and 1st March, 1900, was fully capable of understandingwhat property belonged to her and how she wished to dispose of'it and of giving instructions to her proctor to that effect: in fact,that she was a free and capable testatrix of sound disposing mind.
As regards the documents which are said by the propounders torepresent the testatrix’s intentions, we think the evidence- estab-lished the untainted genesis of the document marked B in thefashion described by the District Judge at page 238 as representingthe intentions of the testatrix in 1900.
If B represents the intentions of the testatrix in 1900 as regardsher children, it appears to us clear that she intended then, whenadmittedly in sound health and in full possession of all her faculties,that Harry should have a larger share of her property than theother children.
We also think that B 2 had its origin in 1900 at Spittel’s handsby direction of the textatrix, and we will proceed to show thereason for our belief. In document B items 24 and 25, Nos. 4 and5, Bankshall street, are allocated to Harry. In B' 2 they are put onthe first page as allocated to Hany’s batch of property, but havingagainst them a bracket aDd Caroline’s name in pencil, and bydeeds of gift numbered respectively 2,200 and 2,201, and dated23rd July, 1900, these properties were conveyed by the testatrixto Caroline. If, therefore, B 2 had not been written in 1900, weshould have expected* to find those two items in the batch allottedto Caroline in B 2 and not in the batch allotted to Harry.
This also shows that the textatrix, while admittedly in soundhealth, changed her miDd and gave property which in B wasallotted to Harry to her daughter Caroline in 1900.
The same inferences are deducible from the item Park Sfore,which in B is allocated to Harry and put by Spittel in Harry’s batchin B 2, but conveyed to Lambert and Emily by deed No. 2,202 onthe 23rd July, 1900, although in B Harry’s name has been crossed
( 197 )
out and “ L and E ” substituted for it. Charles says (page 4) that B 2was produced in the .presence of Alvis in May, 1900,' but Alvissays he did not notice it.
Presumably then it was blank, except for the batches of propertiesand Spittel's figures "17-2-00." It may be that Alvis really sawB 2 in May, 1900, though he does not recollect it; at any rate, hemust have had instructions different from or intended to alter thosenoted in B, which he took away, as he prepared deeds Nos. 2,200and 2,201 for Bankshall street and deed No. 2,202 for Park store.These instructions must have come from the testatrix, as sheherself executed the deeds on the 23rd July, 1900, when thereis do question as to the healthy condition of her mind andbody.
It is true that in B, against the item Park store, Harry's namewas crossed out and " L and E " written in, but there is no suchalteration as regards the Bankshall street properties, the instruc-tions as to which, although Alvis does not recollect them, mustcertainly have come from the textatrix.
Again, the crossing out of Harry's name in B in reference toPark store, and the insertion ol " Lambert and Emily, " which wasapparently done by Harry, was, if the values are correct, a clear lossof Ks. 15.000 to Harry if Daniel’s valuations (page 216) are to beaccepted, as Harry appears to have received Oyanwatta under thewill, worth Bs. 15,000. in exchange for Park store, which Danielvalued at Bs. 30,000.
If B 2 is thus shown circumstantially to have been in existencein 1900, then Spittel’s statements as to marking the dates of 17-2-00on it, when he forwarded certain deeds to Caderaman, receivesubstantial corroboration, and. coupled with the evidence ofCharles give rise to a strong presumption that B 2 was is genuinedocument founded on B, which had its origin in 1900, as Charlesand Spittel allege.
If B 2 really existed in 1900, a considerable portion of thesuspicion which the appellants rely on is removed, and theimpeachment of Spittel's evidence falls to the ground.
There is the further internal evidence that B 2 was founded onB to be obtained from the fact that all the properties mentioned inB find a place in one or other of the groups in B 2 except Attana-gala. Apparently B 2 passed through Spittel's hands on the 29th 'June, 1900, the day after th$ first batch of deeds of gift wassigned, and wras brought to him, he says, by the testatrix.
Charles deposes (page 4) to handing it over to Mrs, Pieris inMay, 1900, and there is no evidence with regard to it until itappears from the almirah on the 27th February, 1903, at the
1904.
July ISi
Wendt 4sMiddleton,JJ.
1904.
July 18.
Wewdt &Mdsuboh,JJ.
( )interview between Alvis and Mrs. Pieris, when he went to takeher instructions for her will.
According to Alvis (page 141)—and there is no reason to doubthim on this point—it then became the substance of his finalinstructions for drawing the will, which he says he drafted on B 2alone (page 145).
It is contended by counsel for the appellants that B 2 differsvery materially from the will, and that those variationswere made by Harry without the assent or authority of thetestatrix.
A number of properties have been alluded to in this connection,and we consider it our duty to take each in turn to see howfar the argument of counsel is in this respect well founded.
, We have already mentioned the variations as regards Bankshallstreet and Park store, which do not come into the will, but showthat the testatrix must have changed her mind in 1900 withrespect to the distribution of these properties by deeds of gift..
We take (1) the Ella Cottage—in B given to Julia and Lucyand put in B 2 in Harry’s group, “ Julia and Lucy ” being crossedout in B and the word “ Harry " written against them. If B 2was drawn up by the testatrix’s orders by Spittel, as we find itwas, then a change of intention is manifest on the part "of thetestatrix, and the alteration in B must have been made beforeB 2 was written.
At the same time, Maliban street and Norris road, which weregiven to Harry in B, have his name crossed out there and thenames of Julia andLucy substituted,while inB2 those two
properties are entered bySpittel in group9. Thislooks as if a
change of intentionhastaken placein1900onthe part of
the testatrix, and the will carries out that change of intention.Now, it is noticeable that in B the rental of Ella Cottage isRs. 360, while the combined rental of Norris road and Maiibanstreet is Rs. 480, thus making the exchange on the rents to thedetriment of Harry.
It may have be'en Harry’s hand which made the alteration in B,but it is confirmedbythe testatrixtoAlvisinB 2 by his
writing “ Julia and Lucy ” against the items Maliban street andNorris road and “ H.A.P. ” and “ to be devised to H.A.P. ” against* Ella Cottage.
If Charles Pieris (pages 61 and 62) is speaking the truth—andAlvis was not questioned on the point—the one acre of ISnd wasmarked in.pencil under Ella Cottage in B by Cadiramen, andwas allocated to Harry as the balance of the block at Mrs. Pieris’issuggestion.
( 199 )
No particular instructions appear to have been given as to this 1904.acre to Alvis, but it is inserted in the draft will as described by a July IS.figure of survey, and in does not appear that Harry was responsible&
for it being vso inserted. Assuming the testatrix to have been Hiddebtok,capable of appreciating the contents of the draft, it would appearto have got into this will with her knowledge and consent asa bequest to Harry.
Fincastle. In a perusal of the deeds we ascertained thefollowing. The land on which this house stands was bought byJeronis Pieris and Sir William Mitchell from Ossen Lebbe, andeach took one rood and six perches.
The deed of gift to Harry. prepared by .Alvis was foundedon this old deed of Jeronis, and only conveyed one rood and sixperches.' After the purchase of this land by Jeronis Fincastlewas apparently built, and it is clear from the figure of surveydescribing it, made in August, 1900, that it then contained withinits wall three roods and five perches, showing that Jeronis Pierismust have added land of his own, which, as stated in thedocuments, bounded the land which he bought from Ossen Lebbe.
The deed of gift was dated 28th June, 1900 (Z 6) and clearlyconveyed less than was intended under B and B 2.
Alvis's explanation (at pages 152 and 153) as to why it Was notin the draft will and that he was practically wrong are by no meansimprobable, considering our belief that the actual circumstancesdid not appear to be fully appreciated even at the argumentby counsel for the respondents, and we have no difficulty inconcluding that Fincastle was put into the will to cure the deficiencyin the deed of gift (Z 6), apparently with the testatrix’s knowledgeand assent.
Galkissa lands. It is said these lands are omitted from thewill, and that this shows again it is not the testatrix’s will.
As regards Fernando’s Galkissa land, a clear explanation wasgiven by Charles (at pages 39, 40, and 96) as to its being conveyedto Lambert. This has not been denied by Lambert. The debt dueto the estate of Jeronis on the mortgage bond appears to bea valueless asset.
As regards the other Galkissa land, this was conveyed to Lambertby deed of gift No. 2,177, dated 28th July, 1900, and there wasno necessity to put it in the will.
Eltyourt. It was objected that the terms of the devise of thisproperty were at variance with the testatrix’s intentions, if theywere expressed in B 2 to be the same as those to affect BanyanTree House.
( 200 )
1904.
July IS.
Wendt &
Middleton,
JJ.
According to B 2 it was to go to Elsie, and by the will it wasleft to Elsie,"' to be held and possessed by her father till Elsie’smarriage, which apparently were the terms on which Banyan TreeHouse was given. We fail to see that there is any materialvariation between B 2 and the will as to the terms on which therent w&s to be fixed and to be paid by Harry.
We think, therefore, that B 2 and the will are not at variancehere.
Bambalapitiya lands. There is a variance here between B andB 2, but not between B 2 and the will. The lands were apparentlydivided into five portions in figures of survey in 1900, winchfrimd facie would show that it was done by the testatrix’sinstructions. Harry noted the acreage in B 2. Alvis apparentlytook instructions on the subject, as he noted on page 3 of B 2“ give extent,” but in the draft will the portions are devised onfour of the surveys and the remaining portion given to Harry. Thewill follows the draft will on this point, and, presuming the draftwill was fully understood and appreciated by the testatrix, itis clear she approved of the variance.
Dunkannawa. It is suggested as regards this property by theappellant’s counsel (1) that it was overvalued; (2) that therehad been a compromise between the two executors Harry andCharles as to the payment of legacies from the income.
As to the first point, we are by no means certain from the terms. of Mr. Scott’s report (page 271) as to the possibilities of the estate,whether he has not very considerably undervalued it, as therespondents assert. The property at any rate was divided into sixportions and surveyed in 1900 on six plans, upon which the namesof the devisees were marked, and was devised to the persons forwhom it was destined in. B and B 2, except that Richard’s wifereceived Richard’s portion, and it cannot be said that the willdoes not carry out what were the testatrix’s wishes in that respectin 1900, and again when instructions for the will were givenon B 2.
As to the second point, as to the crossed-out notes in B 2, page 3,Charles's answer at page 75 (364) appears to meet the insinuation,and the inference may be drawn, as contended by counsel forrespondents, that the executors were not then scheming to increasethe residue, an imputation that has been strongly pressed againstthem.
Kandy houses. It is said by the appellant’s counsel that thedevise of the Kandy houses was a gift of litigation, for which itis suggested Charles and Harry are responsible. B however givesthem to Theobald and Richard, while the initials of Lambert
( 201 )
are added in B 2 and Alvis's note is that they are to be left to 1904.Mrs. R. S. Pieris, Lambert, and Theobald. If they are a gift of18.
litigation, the testatrix apparently intended originally that it should Wendt &be shared by Richard and Theobald, as they are so noted in Cadera- Mn>I^a!0N<man's handwriting; and if A1 vis’s note is to be relied on in B 2,the testatrix instructed him that these properties were to be leftto the wife of Richard, Lambert, and Theobald, instead of toRichard and Theobald, as she originally intended. From Charles'sevidence at page 36 it does not appear that he knows much ofthem, but they are put on the inventory of Jeronis’s will (vol. 3,page 27) at a value of Rs. 12,000. They also appear in the draftwill as devised to these persons, and there is no evidence toshow that Charles or Harry by word or deed induced the testatrixso to devise them.
lUukgalla, Labugolla, and Gangoda near Labugolla. The same
observations apply to these properties, and the same points are
taken by the appellants in respect to them as are taken about the
Sandy houses. As regards the valuation, which appears at
Rs. 20,000 in the schedule to the disputed will (vol. I, page 14),
while in Jeronis’s schedule (vol. m, page 28) it appears at
Rs. 2,000, it is possible that the over-valuation may be the mistake
of adding an additional cypher made by a clerk, as suggested by
counsel for the respondents.
>
Kelankaduwa. As regards these properties the appellantsallege that No. 101 was not only gifted to Harry by deed No. 2,172,but also left to him by the will, which shows that the testatrix didnot know what she was doing.
This hasadmittedlyoccurred.ByB three lotsat Kirilla-
pone wereto be givento Hariy.OnB 2 is notedD/G 2,172
against Kirillapone. Deed No. 2,122 is the deed dated 1900 markedZ 8, which admittedly conveys No. 101, Kelankaduwawatta, andtwo other parcels, Ambagahawatta and Madangahawatta, andtherefore it was Kirillapone three lots, as Spittel says, which,were conveyed by deed of gift. No deed of gift for Kelankaduwa,as it appears on B and B 2, was prepared, although Alvis hasnoted D/G against it.'*
There isno Kelankaduwawatta inthe scheduleunder the
disputed will—why, it is difficult to say. In addition, two piecesof land 58 and 60 at Wellawatta, which apparently have somqconnection with the name Kelankaduwa, have been inserted in thewill. Pamankada (which we believe is the name of a village) doesnot appear to have been disposed of either by deed or will unlessit represents the two properties under 58 and 60 just mentioned.
Alvis doesnot appearto havebeenquestioned about Kelan-
( 202 )
1904’
July 18.
Wendt &UtODOROK,
JJ.
kaduwa, and the inference is that. No. 101 was put into the will bya mistake of Alvis. That the testatrix did not notice this whenthere were apparently several other properties of the same name,all of which were destined by B to go to Harry, does not provethat she did not understand the dispositions of the will.
Schoolroom. This was to go to Lambert in B, but was notinserted in B 2, and is described as “ 5, Hyde Park street ” or “ HydePark gardens ” in the schedule, and valued at Bs. 20,000, and hasnot been devised specifically by the will.
It is suggested by counsel for the appellants that this was pur-posely omitted from devise in the will in order that it might swellthe residue for the benefit of the executors.
Spittel says it wais a mistake that it was not put into B 2, andCharles says ho told Lambert that his impression was he hadreceived it with Fern Bank under the joint will. Lambert hasnot been called to deny this. If there was no conveyance by thetextatrix as executrix of Jeronis to Lambert of Fern Bank, it isplausible that it was assumed that Lambert got 5, Hyde Park street.If B 2 was the foundation of Alvis’s instructions, and B was notreferred to but kept in a box, the circumstances are consistentwith an oversight.
Lathpandura. This has a place both in B and B 2, but no■allocation in either. It does not appear in either schedule.Charles says it was intentionally omitted at the request of thetestatrix as a valueless properity which had been exploited forplumbago and abandoned. There is no evidence to show it is valu-able on the part of the appellants, and though Charles’s evidenceis challenged it is not contradicted, and the District Judge hasbelieved it. We do not see any ground for supposing even fromAlvis’s statements at pages 158 and 159 that this was a valuableproperty which was purposely omitted, from specific devise inorder to swell the residue.
Galkandawatta. This is neither in B nor in B 2, but appears inboth schedules at a value of Bs. 80. There does not appear to beany inference adverse to the executors to be derived from thisproperty falling into ‘ the residue as it apparently has.
Kongahawatta. The same remark apply to this land as toGalkandawatta. It. is valued in both schedules at Bs. 500.
( Attanagala. This appears in B unallocated, not in B 2, but inboth schedules at a value of Bs: 250. Being in the schedule underthe disputed will, attention is called to it. We see nothingsuspicious in'this, parcel falling into the residue.’
OyanW'atta, in B given to Emily, in B 2 is not in Emily’sgroup, biit having Harry’s initials in his handwriting against it and
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devised by the will to Harry. Alvis apparently wrote the word 1904-" will " against it in B 2 in conformity with the testatrix's instruc-tions, but cannot say why 6he – changed her mind as regards the Wendt 6property. Charles (at page 60). says it was exchanged for Park store,which was given to Lambert and Emily, an exchange to which wehave before alluded, under the head of “ Park store," as beingdetrimental to Harry's interest to the extent of Rs. 15,000. It wasgiven by the draft will to Harry and ratified by the disputed will.
We do not consider therefore that B 2 does differ in such materialparticulars from the will itself as to cause us to hold that the willcould not have been founded on it, or B 2 differs so materiallyfrom B as to oblige us to say that it does not practically repre-sent the same thing.
Charles's explanation (page 76) as to the alterations on the lastpage of B 2 in the shares of the jewellery appear reasonable andsatisfactory.
The crossing out of the words " no commission, " which werewritten by Harry, has not been altogether explained by Charles rbut he gives a reason why perhaps Alvis may have struck themout, and there is nothing in the will apparently relating to com-mission, although the residue out of which the commission wouldcome was to be divided amongst the executors. Whoever insertedthem knew that the executors would get commission if it was notbarred*, and if it was Harry who did so it was a self-disservingact on his part as an executor to write it, whether he did so on hisown account or as indicating the testatrix's wishes.
As regards the legacies, we see no reason to doubt that thesewere dicated by the testatrix herself and written down by Harryon the last page of B 2, . and confirmed to Alvis and by him embodiedin the will. Alvis's evidence as to the testatrix's remarks aboutElsie’s ayah and the added legacy to Mrs. Bastian Perera do notarouse our suspicion that these were apparently natural incidentsfalsely introduced by the alleged conspirators to tinge withreality the grave fraud they were engaged in committing, but wethink they are really natural incidents which did in fact occur.
It has been alleged by counsel for the opponents that the disputed',will is a long and complicated one. It is not a short will, but we-fail to see that it is at all complicated. If analysed, it consists,almost entirely of a series of specific bequests to specified persons,in the simplest manner, a recital of the effect of the joint will and*»the textatrix’s position thereunder, the confirmation of the deedsof gift* appointment of executors and guardian, and directions tothe former as to the office staff and as to certain debts due to the?estate and the position that the testatrix desired Elsie and her son.
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1904.Bichard to fill in regard to theproperty devised to theformer and
July 18,to the latter's children. It presents no difficulty to theundersband-
Wendt Soing of even the most ordinaryperson in our opinion,and would
ke easy of comprehension toa person like the testatrix, who
apparently took a personal interest in her properties and businessaffairs. As to the debts due to the estate Mrs. Mendis (page 226),a witness for the defence, deposes to the arrangement for equa-lizing the shares made by Mr. Caderamen, and she is confirmed bySpittel and Charles.
Some emphasis was laid on the fact that so long a periodelapsed between the' testatrix’s request to Alvis in 1900 to makeher will and the actual making of the will in 1903. We think *Alvis's explanation meets this. An elderly lady says to her proctor,
“ You must make my will, " but she does not send for him orgive him any further instructions. It was not unnatural that heshould take no steps without .any further intimation. It is alsosaid that the will was made in a hurry. To a certain extent thatis probably true. It is not an uncommon thing for people todelay making their wills until they are reminded of impendingdissolution, and it is quite probable that on the 26th February,1903, the testatrix’s illness may have reminded her that she hadnot made that provision for the future which she intended to doin 1900, and that ft was advisable to take the matter in hand.We do not understand the propounders of the will to maintainthat the testatrix was not ill at the time she gave instructions forher will, or that there might not have been some hurry in carryingthem out. We are prepared to accept the evidence of Alvis, whichis corroborated byCharles, that hetook his instructions fromthe
testatrix .upon B_2 and draftedthe will uponthem. Wedo
not see any reason to doubt that these instructions were conveyedby the testatrix herself, although everything may have passed inthe presence of Harry and Charles, and that the draft will wassubmitted to andapproved of byher, and thatshe signedthe
disputed will witha full knowledgeof its contentsin the presence
of the witnesses who have deposed to the fact.
If Alvis is to b& believed, and we have no reason whatever todoubt him (page 147), he explained in Sinhalese the contents ofthe draft will, clause by clause, to Mrs. Pieris, reading in the gapswhich had been filled in at his request. Again (page 143) upon thec signing of the will he explained the whole will, clause by clause,to Mrs. Pieris, and he says on his oath that, although he may haveomitted the number of a title plan or some detail like that, thesubstantial material contents of the will were explained by him;that so far as he was able to observe, she followed the explanations
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intelligently and knew and understood the contents of the1904.
document; that he had no doubt whatever that day that there was July 18.no deficiency or incapacity of mind in the lady; that there was Wmn>T&not the slightest indication of any failure of the mind; and that if Mtometok,he had the slightest suspicion that she was wanting in capa- JJ‘city, he would certainly not have taken her signature. There isnothing urged against the competency of the interpreter, whichappears to be practically admitted.
As regards the evidence of Sanmugan and Fernando, we do nofc-believe that either witness stated knowingly what was false.remark which Fernando put in the mouth of Sanmugan was, as it*appears in evidence, of an ironical character. It may well be thatSanmugan did say something of an ironical character which toFernando may have borne the impression which Fernando .hasconveyed of it, and Sanmugan in denying it denies the imputationwhich the remark might have conveyed to Fernando, and hencean apparent contradiction. We do not see any reason in this forholding against the finding of the district Judge and assessors onthe question of Sanmugan's presence at, and due attestation of,testatrix’s signature.
We then come to the question of undue influence, which inorder to be sufficient to vitiate a will must be influence eitherby coercion or fraud (per Lord Cranworth, L.C., in Boyse v. Boss-borough, 6 H. L. 48), and the Lord Chancellor goes on to say(page 49): “ One point, hewever, is beyond dispute, and that is thatwhen once it has been proved that a will has been executed withdue solemnities by a person of competent understanding and appa-rently a free agent, the burden of proving that it was executedunder an undue influence is on the party who alleges it. Undueinfluence cannot be presumed. ” Following these principles as ourguide, there is no evidence adduced by the opponents of the willwhich calls upon us to say that the District Judge and assessorswere wrong in their finding on the second issue. There areinsinuations and suggestions, but no proof, and Eichard Pieris didnot go into the witness box to substantiate thy allegations set outin his affidavit, nor were any witnesses called by the opponents witha view to proving them. It was argued that there was a suspicioussecrecy about the preparation and execution of the will, but itwas not suggested that any attempt was made to conceal the fact tha^a will was in prepartion, nor after its execution to mislead anyone tq the belief that no will had been made. That those membersof the family acquainted with the fact that a will had been madedid not mention it to the others, is accounted for by the state offeeling in the family.
17-
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Counsel also commented adversely on the fact that the assessorsJuly IS. gave their opinion some days after the conclusion of the evidence,Wbnst & and without the facts being recalled to their minds by a summing .MlDjjKT°N’ UPJudge. It is nowhere laid down in the Code that the
Judge is obliged to sum up the case to the assisssors, and thereforesuch a proceeding is not essential, and doubtless the memories ofthe assessors were sufficiently refreshed by the addresses of counselon both sides following the conclusion of the evidence and imme-diately preceding the expression of their opinion.
One of the last arguments raised by counsel for the appellants in. reply was that, taking into consideration section 111 of the EvidenceAct, the Courtmightapply to the case ofa will'the principles
following in thecaseofdonations in Powell v.Powell, 69 L. J. C/i.
(1900) 164, and in Bright v. Garter, 72, L. J. Ch. (1902) 138, thatgifts inter vivos must be set aside between, certain parties unlessthe party benefited can show affirmatevely that the other partycould have formed a free unfettered judgment in the matter. Itwas admitted that in Parfitt v. Lawless (L. R. 2, P. & D. 462) LordPeinzance, whose judgment was assented to by Brett, J., had heldthat the equityruleinrelation to such giftswas not applicable to
the making ofwills,but we were invited toconsider the question
anew on our own account, having in view the amalgamation of lawand equity in the English Courts. We regret that we must declineto embark on this investigation, being content to accept LqrdPenzance’s view, which, although given in 1872, does not appear tohave been questioned.
In our view the judgment of the District Court should beaffirmed, and the costs of this appeal and in that of the Court belowshould be borne by the opponents.