091-NLR-NLR-V-06-Re-Last-Will-of-the-late-W.-F.-MORRISS.pdf
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Re Last Will of the late W. F. Morriss.1903.
January 20.
Frank Wiglet, Applicant for Administration.
D. C., Colombo, No. 1,774.
Claimant under a will—Application for probate—Absence of opposition—Dis-cretion of District Judge not to admit will to probate—His duty tp makean order nisi and name the respondents on whom such order should beserved—Civil Procedure Code, s. 626.
A claimant under a will, .upon producing it in Court, is not bound toprove ’ that it has not been cancelled by some subsequent will, or that itis otherwise valid.^
In the absence of any opposition to the application for probate, it iscompetent to the District Judge not to allow probate to issue, but thenhe should make an order nisi and name the person upon whom such ordershould be served.
O
N the 11th June, 1902, the applicant filed his petition andaffidavit alleging that W. F. Morriss made his last will on
the 11th July, 1883, and a codicil thereto on the 24th January,1885; that by the last will he appointed A. M. Ferguson, F. C.Loos, and D. W. Ferguson his executors; that the testator died on15th January, 1895; that by the said last Will and codicil hisdaughter Amelia, the wife of the applicant, was made the sole heirto all his property; that the said last will and codicil were foundamong the papers of the deceased and produced by the applicantbefore the District Court of Colombo on the 11th February, 1885,and deposited there in conformity with the requirement ofsection 516 of the Civil Procedure Code; that at the time he producedthe said documents he informed the Court that the testator wasbelieved to have signed a paper writing before'Mr. Notary A. 0.Joseph in 1884, but that' the said testator tore up and destroyedthe same about the 30th December, 1894; that from a subsequentinquiry he had learnt that the paper writing referred to was neverin fact signed by the testator; that the executors named in the lastwill had not applied for probate hitherto; that A. M. Ferguson-was dead. F. C. Loos declined to apply for probate, and D. W.Ferguson was now in England; and that the applicant did notapprehend any opposition to letters being granted to him.
The District Judge, Mr. D. F. Browne, declined to admit the willof 1881 and the codicil of 1885 to probate, because he thought thatin 1894 another will had been signed and, from inquiries made,the testator appeared to be bom olj a Eurasian lady to oneMr. Morriss, who had come from Ireland at the end of the 18th28-
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1903. century, and that the testator, whether legitimately or illegitimatelyJanuary 20. bora, had two children by a Sinhalese woman, one of whom waspresently a patient in the Lunatic Asylum, and the other wasnow Mrs. Wigley. The District Judge considered the difficul-ties of finding an heir to Mr. Morriss would be very great, andthat though there was some evidence that the will of 1894 wasdestroyed by him subsequently, the legatee appointed by that willshould have notice of these proceedings. He therefore declinedto admit the earlier will and codicil to probate, but he reserved tothe petitioner the right to renew his application when any formalapplication for the administration of the estate as an intestate oneshall be made, or else for probate of the later will.
The applicant appealed.
The case was argued on the 20th January, 1903, before Layard,C.J., and Moncreiff, J.
Walter Pereira, for appellant,—
The District Judge mero rhotu and in the absence of anyopponent has rejected the application, refusing even a decreenisi. No issues were framed. The applicant does not .know howthe District Judge came to inquire into the matters connectedwith the grandfather and father of Mrs. Wigley. No one movedhim to institute these inquiries. He, however, believes that thiswill of 1881 and the codicil thereto are genuine. It was his dutythen to have made an order nisi and caused it to be served on thepossible opponents he had in view. No one came forward, whena special case was stated and submitted to the District Court inregard to the sum of Rs. 10,000, part of Morriss’s estate, which cameinto the hands of one of the executors. The District Judgerefused to decide the question submitted until there should be• raised up a legal representative of the estate, whether testate orintestate. This sum is now lying idle, and the District Judge’srefusal to make an order nisi is most inconvenient and has led toa deadlock. It is not the duty of the applicant to prove that thewill he propounds was not cancelled. Voet, 5, 3, 5. The onusof such proof is upon any opponent who may come forward.The applicant knows of no opponent.
Layard, C.J.—
In this case the petitioner has applied for letters of adminis-tration with the will annexed. He has supported his applicationby the necessary affidavits, and he has stated in his application.that he had no reason to suppose that the application would beopposed by any person, and has omitted to name in his petitionany person as respondent. In view of the facts stated in the
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petitioner’s application, we think that the District Judge wasright in not allowing probate to issue, but in our opinion heshould have made an order nisi and named the persons uponwhom he thought such order nisi should be served.
The District Judge has in this case reserved to the applicant theright to propound the will and codicil in the event of applicationfor letters of administration being applied for by any other pernon.His object in so doing, he states, was that the matter should belitigated between the petitioner and some tangible opponent. Itappears to us that, to bring this tangible opponent before the Court,the Judge, acting in this matter under the provisions of section 526of the Code, should direct that the order nisi be served on- suchpersons as he thought fit. We do not wish to interfere with thediscretion of the Judge as to who' should be named respondents,but it seems clear to us that Mr. Loos, the only surviving executorresident in Ceylon,, should be one.
We desire to point out to the District Judge that under ourlaw, when a person claims under a will, he is not bound, uponthe production of it, to prove that it has not been cancelled bysome subsequent will or that it is otherwise valid, but that it isfor the person who intends opposing the will to set up thatdefence. Voet, 5, 3, 5.
1903.
January Z0.La yard, C.J.
Moncreiff, J.—I agree.