GOONEWARRDENE v. GOONEWARDENE

004-NLR-NLR-V-31-GOONEWARRDENE-v.-GOONEWARDENE.pdf


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Present: Dalton and Akbar JJ.
1989.
GOONEWARDENE v. GOONEWARDENE.~~
207—D. C. (Inty.) Galle, 6,510.
.* >
Last will—Bequest of money invested in mortgage bonds and promissory
notes—Confirmation of will by codicil—Increase of investments—
Effect of codicil—Ordinance No. 21 of 1844, s. 6.
A testator by his last will dated August 7, 1913, bequeathed tohis wife." all the moneys now invested by me on mortgage bondsor promissory notes andall cash indeposit to mycredit inmy
No. 2 account, subject to the direction that she is to have theinterest derived therefrom up to the time of her death or re-marriage. Thereafter thesameshall,vest absolutelyin my three
nieces.”
By a codicil dated August 9,1927,he made freshbequestsand
declared as follows:—“ Save as hereby altered or modified, I hereby'confirm the said will."
In August, 1913, the deceased had a sum of Rs. 39,000 investedon mortgage bonds and promissory notes and Rs. 1,250 in No. 2account. These bonds ornoteswerenot in existencein 1927,but
at the date of the codicil he had a sum of Rs. 214,300 invested inbonds and promissory notes and a sum of Rs. 6,920 in No. 2 account.
Held, that the nieces of the testator were entitled to the reversionof all the moneys invested on mortgage bends and promissorynotes and all the cash in deposit in No. 2 account at the date ofthe codicil.
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^^PPEAL from a judgment of the District Judge of Galle.
D. G. G., by his will dated August 7, 1913, directed inter alia asfollows:—“ I give and bequeath to my said wife all the moneysnow invested by me on mortgage bonds or promissory notes andall cash in deposit to my credit in my No. 2 account in the MercantileBank of India, Ltd., Galle, subject to the direction that she is tohave the interest derived therefrom up to the time of her death orremarriage as aforesaid. Thereafter the same shall vest absolutelyin my three nieces . . . . ”
‘“I make the following bequests ….(2) The rest” and
residue of my cash found in my possession at the time of my demiseand also the money in deposit to my credit in my No. 1 account
in the Mercantile Bank of India, Ltd., Galle, in the Bank of Madras,Colombo, in the Government Savings Bank, and in the Post OfficeSavings Bank, and the amount of my jpolicy of insurance, togetherwith the profit thereof, and all other movable property absolutelyto my said wife Margaret.”
By a codicil dated August 9, 1927, he made a few fresh bequestsand declared as follows:—" Save as hereby altered or modified, Ihereby confirm the said will.”
In August, 1913, the deceased had a sum of Rs. 39,000 investedon mortgage and promissory notes and R6. 1,250 in his No. 2 accountin the Mercantile Bank. None of these bonds or notes were inexistence in 1927, but in August, 1927, the deceased had the sum ofRs. 214,300 invested in bondo'and promissory notes and the sumin the No. 2 account amounted to Rs. 6,920.
The contest was between the widow and her nieces. The formercontended that she was entitled absolutely to the sum of Rs. 214,300which was invested subsequent to the date of the will and to the
money in No. 2 account. The District Judge held that the effectof section 5 of Ordinance No. 21 of 1844 was to bring the dateof the will down to the date of the codicil, and that accordinglythe nieces were entitled to the reversion of the Rs. 214,300 andRs. 6,920. The -widow appealed.
Soertsz, for appellant.—Roman-Dutch law principles must be( applied in this- case. The District Judge has based his judgmenton English law. Even if this is applicable the District Judge iswrong. Ordinances. No. 7 of 1840 and No. 21 of 1844 must beconsidered: Provisions of Ordinance No. 21 of 1844 have beentaken over from the Wills Act, 1837- Section 5 of that Ordinancehas the words “ for the purpose of this Ordinance ”. Wills thatwere bad for non-compliance with the old regulations could be madevalid by the testator confirming it by a codicil.
1929.
Qooneu/ar-dene v.Qoonewar-dene
(.11 )
This will is dated 1913, “ now ” means in 1913. All investments i&29.after 1913 went under the residuary clause to the widow.Gootmoar-
A codicil has a very much more limited effect under our lawdense.
than under English law. If English law applies, the presumption ^eis that wills should be read as though made at the death of thetestator, yet if there is a contrary intention in the will itself thatpresumption will not arise. Further, this is a specific bequest andas the bonds and notes were realized the legacy was adeemed.
But Boman-Dutch law has application (Mohamed Caasim v.
Hdssen1.) English law has been introduced into Ceylon for certainpurposes by Ordinances No. 5 of 1852 and No. 22 of 1866. Whennot so introduced, the common law must apply.
[Akbab J.—If Boman-Dutch law applies, how does it help you?]
In Boman-Dutch law there is no presumption that wills must beread as made at date of death.
The word “ now ” must be given a meaning (Cole v. Scott.3Hutchinson v. Barrow 3 Lloyd v. Hatchet1).
This was a specific bequest and hence there was an ademptionin English law and a revocation in Boman-Dutch law. With regardto ademption see Theobald on Wills 175, 178, In re Slater.*
It the legacy was a debt due to testator and the debt had beenpaid the legacy failed (Be Pilkington’s Trusts,* Stanley v. Pottery-Fryers v. Morris*).
Same principle in Boman-Dutch law (I Maasdorp, 188, 189:
4 Nathan, 1884).
We now come to the question of the codicil and what effect it hason the will. It does not operate too bring the date of the will downto the date of the codicil. Section 24 of the Wills Act was nottaken over in its entirety by our Ordinance. Effect of codicillimited to “for the purpose of the Ordinance.”
[Dalton J.—Why does not this will executed in 1913, confirmedby codicil, gain the benefit of section 5 of our Ordinance?]
Because it is not such a will as contemplated by the section, i.e.,because the will was a good one. Section 5 only dealt with invalidwills. Even under present canditions a will made by a maleunder 21 can be revived by codicil. Similarly a will made by aCeylonese in France (Brooks v. Kent,* In re Park1*).
i 29 N. L. R. 89.
11 Maenaghten and Gordon's Reports (1849), 518.
8 6 Httrlstone and Norman's Reports, 583 (592). .
L. R. (1920) 2 Ch. 1.
(1907) 1 Ch. 665.
6 New Reports (April-August, 1865), 246.
7 2 Cox's Equity, Cases, 180.
9 Ves. Jr.'s R. (1803-04), 360.
3 Moore (P. C.), 344.
10 (1910) 2 Ch. 322.
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1929. The testator has taken special care to direct where after-acquiredOonwar. ProP^ty is to- go.
dene v. The codicil could not revive things that ceased to exist (Moscowv. Crasaley,1 Pouya v. Mansfield,2 Hopwood v. Hopwood 3). DistrictJudge applied In re Beevesbut that could be distinguished.Section 24 of the Wills Act was applied in that case. Section 24 isnot law in Ceylon.
H. V. ■ Perera (with N. E. Weerasooria), for respondent.—Indealing with money in a will it is usual to use the words “ at thetime of my demise ” to describe this money, but this expressionmust not be taken to mean that the testator meant to draw adistinction • with regard to point of time between money and someother class of property mentioned elsewhere in the will without.such words of qualification.
Section 24 of Wills Act is not a new rule at all. The object ofthis provision was to extend the rule applying to personal property—that will speaks from time of death—to real property (In re Chapman1).
In Ceylon there is not the same distinction between movable andimmovable property as there is between personal and real propertyin England. Property movable and immovable pass immediatelyto heirs (Silva v. Silva3).
“ For the purpose of this Ordinance ” in section 5 is for thepurpose of dealing with all his property, (aide section 1 of Ordinance).Meaning of republication and revival- (Theobold on Wills, p. 70).
To find out the extent of devise both instruments must be lookedat. English law is correctly set out in In re Beeves (supra). .
No reason why this should not be applied in Ceylon. There is nosubstance in any of the appellant’s .contentions owing to section 5of the Ordinance. Brooks v. Kent (supra) supports view takenby Eussel J. in In re Beeves (supra).
' [Akbak J.—You are relying on section 5 and the codicil; supposethere was no codicil?]
Then under English law section 24 would apply. Sections 1 and5 of our Ordinance should be read together. Even if there was nocodicil it is submitted that after-acquired property passed. Therebeing a codicil my case is stronger (In re PopeT).
One must read the will as if dated the same as the codicil.
Soertsz, in reply.—It is wrong to impute an intention to thetestator and then to see whether the language expresses thatintention. We must'not assume that the testator was dealingwith his property in classes.. We must ascertain the intention asexpressed.
1 (1927) 1 Ch. 364.‘ (1928) 1 Ch. 351.
• 3 Mylne and Craig’s R., 359.6 (1904) 1 Ch. 431 (435).
*7 H. of L. Cases, 728.• 10 N.,L. B. 234.
•(1858) 4 Jurist 051; (1901) l Oh. 64.
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With regard to section 5, "for the purpose of the Ordinance ”
means for the purpose of applying to wills made before 1844. Ooonewar-Its object was to enable the testator to take advantage of any g^^uar.old will.dene
Mortgages on immovable property are movables.1
With regard to word " now ” (vide Harrison v. Jackson,*
McClelean v. Clark,3 In re Robe*).
July 30, 1929. Dalton J.—
This case raises some interesting and difficult questions in con-nection with the construction of a will and codicil. The difficultiesarise in part from the fact that some of the questions do not seemto have come before' our Courts before. The testator, who wasCrown Proctor at Galle, died on August 22,, 1927, leaving a willdated August 7, 1913, and a codicil dated August 9, 1927. Thematerial parts of the will are as follows: —
" I give and devise to my beloved wife Margaret my residinghouse ‘ The Mound ’ together with the land about fouracres in extent whereon the said house is built ….provided, however, that my wife shall not have the rightto sell, gift, mortgage, or otherwise alienate the same butshall possess the same up to the time of her death orremarriage, whichever happens first: After- her death orremarriage the said properties shall vest absolutely inmy three nieces., all of Kurunegala.
" I give and bequeath to my said:wife all the moneys now investedby me on mortgage bonds orpromissory notesandall
cash in deposit to my credit in No. 2 account, in theMercantile Bank of India, Ltd., Galle, subject to thedirection that she is to have the interest derived there-from up 'to the time of her death or remarriage as aforesaid.
Thereafter the same shall vest absolutely in my threenieces.”
■* ‘ I make the following bequests: —
(a) My brilliant ring …. to my nephew ….;,
{b) My fitted suit case to our nephew and godson ….;
(c) My small dressing case ….to my nephew….;
ij3) My~gold watch and chain ….to my nephew…;
(e) My brilliant ring …. to mybrother-in-law….;
(/) My set of Encyclopaedia Brittanica . . . .tomy
nieee – . – said
1 2 Maaadorp i,* 7 Ch. D. m.
* 50 L. T. 616.« 61 L. T. 497.
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1929.
Daitoh J.
Qoonevxur-dene v.Ooonewar-dene
(g) The rest and residue of my dash found in my possession afethe time of my demise and also the money in deposit tomy credit in my No. 1 account in the Mercantile Bank ofIndia, Ltd., Galle, in the Bank of Madras, Colombo, inthe Government Savings Bank, and in the Post OfficeSavings Bank, and the amount of my . policy of insurancetogether with the profit .thereof and all other movableproperty absolutely to my said wife Margaret.”
The codicil was as.follows: —
“ I, David George Goonewardene of Galle, do hereby declare this-to be a codicil to the last will and testament made by meand dated the seventh day of August, 1913.
“ Save as hereby altered or modified I hereby confirm the saidwill.
f‘ I give to my servant James in the event of his being in myservice at the time of my death the sum of Rupees Fourhundred. –
” I give, devise and bequeath to Hector Pieris and his sisterFlorence Ida Pieris in equal shares the house and premisescalled and known as ‘ The Bower,’ situate in RichmondHill road, Galle, in which they now reside subject to thecondition that they shall not sell; mortgage, ,or otherwisealienate or encumber the said premises or share thereofand that the said premises or any share thereof shall notbe liable to be sold under execution against them oreither of them and that on the death of either of them theshare hereby devised and bequeathed to him, or her shalldevolve on his or her lawful issue and failing such issue onthe survivor of them subject to the same conditions andrestrictions. In the event of both of them dying withoutissue the said property shall devolve on the threedaughters of my deceased brother Edward GregoryGoonewardene in equal shares.
" In witness whereof .
The dispute here is between the widow on the one side and thethree nieces on the other. At the time the will was made in. August,1913, the deceased had the sum of Rs. 39,000 invested on mortgageand on promi'ssoty notes. None of those bonds or notes in existenceon August 7, 1913, were in existence at the time the codicil wasmade on August 9, 1927. At that latter date however, there was thelarge sum of Rs. 214,200 so invested, of which Rs. 16,050 was onmortgage bonds and Rs. 53,150 on promissory notes. Further,on August 7, 1913, the sum of Rs. 1,250 stood to the credit of No. 2account in the bank, whilst at the date of the testator’s death on- August 22, 1927, the amount was Rs. 6,920.
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Shortly stated, it is urged for the widow that the three nieceshave no interest in the money left by deceased invested on mortgageor on promissory notes, or standing to his credit in No. 2 account;that what he left to them on the death of the wife was only whathe had so invested at the date of the will, and that the large sum ofIts. 214,200 invested subsequent to the date of his will was partof the residue which he bequeathed absolutely to his wife.
The trial Judge has held that the effect of the provisions of section5 of Ordinance No. 21 of 1844 is to bring the date of the will downthe date of the codicil. He accordingly held that the testator’snieces are entitled to a reversion of the moneys invested on bondsand notes as at the date of the codicil, and also to the cash depositin No. 2 account in the bank. The widow is now appealing fromthat decision.
The law applicable is the common (Roman-Dutch) law, as -varied-or amended by Ordinance. Certain provisions of the Wills Act,1837 (1 Viet. c. 26) have been incorporated in Ordinances Nos. 7 of1840 and 21 of 1844, whilst some sections of the Ordinances havebeen adapted from that act. The difficulty arising here, so it•seems to me, is the application of 'the common law, with the emen-dations copied or adapted from an act in England, that is, as to theextent of the change made by statute in the common law, and theextent of the application that is permissible of English authoritieswhich apply English law and interpret statutes not wholly importedinto Ceylon.
It is not necessary to deal noth any difference between wills andcodicils. Owing to statutory enactments here, as in South Africa,such differences as formerly existed have now for all practical pur-poses disappeared (c/. Lord de Villiers in Ebden v. Ebden and another 1As pointed out in Kleyn v. Kleyn,2 the codicil must be read withthe will, and the will and codicil must be construed as forming asfar as they can one testamentary disposition. In considering theeffects of a codicil upon a will, so far as the time of the makingof the will is concerned, one has to turn to section 5 of OrdinanceNo. 21 of 1844. That section enacts that:—
“ Every, will re-executed or republished or revived by any codicilshall for the purpose of this Ordinance be deemed to havebeen made at the time at which the same shall be sore-executed or republished or revived.
If that section applies in this case, then for the reasons I statebelow, the testator’s will of August 7, 1913, is to be deemed to havebeen made on August 9, 1927, but only ‘ ‘ for the . purpose of thisOrdinance”. This section is clearly an adaptation of section 34of the Wijls Act, 1837. That section provided that -the act shouldnot apply to any will made before January 1, 1838, or to any estate1 (1910) A. D. tap. 332.*(1915) A. D. 527.
1989.
Dalton J.
Goonewar-dene v.Qoonewar-dene
C 16 J
102ft.
Dalton J.
Ooonewar-dene v.Ooonewar•
dene.
per autre vie of any person dying before that date. That provisionis not carried into section 5. That may have been due to the fact;that some .of' the provisions of the Wills Act in respect of the exe-cution of wills and codicils had already in 1844 been enacted inCeylon, in Ordinance No. 7 of 1840. It will be noted however thatsection 34 contains the words “ for the purposes of this act ”, whichhave been imported into section 5 in the words “for the purposeof this Ordinance. ” I do not think there’ is any special import inthe use here of the singular for the plural. The words however havegiven me some little difficulty as they do imply a limitation uponthe application of section 5. As I state below, however, thatlimitation, if my view of the law is correct, is not a matter ofimportance in this case. Mr. Soertsz, for the appellant, has arguedthat the section-can only in practice apply to wills made before thedate of the Ordinance, but I am quite unable to so read it. Thewords ‘‘for the purposes of this act” have been' considered in thecase of Brooke v. Kent *. The principal object of the Wills Act, 1837,was to provide for one uniform mode of executing wills. That isnot the purpose for which Ordinance No. ‘21 of 1844 was enacted,since the Ordinance dealing with the execution of wills was enactedfour years earlier, in No. 7 of 1840. Dr. Lushington points in hisjudgment to the need of a provision like section 34 in the act,since if it were not there all wills made prior to the passing of theact would immediately become subject to its operation and sobecome null and void. There was not the same need here in viewof the existence of the earlier .«ct, and therefore probably the timelimit was dropped when the section was adopted. The provisionsin respect of re-execution and repyblication however were adopted,and with them the words ” for the purpose of this Ordinance ”were also' taken over. All wills therefore became subject to theOrdinance, and it is in my opinion quite impossible to give it thenarrow construction for which Mr. Soertsz ' contended- The words;“ for the purpose of this Ordinance ” however still require to beconsidered, and they have given me considerable difficulty. 1 canobtain no assistance, as the section stands, from the above-mentioned. case, the provisions dealing with the requirements of executionhaving no place in this Ordinance. One must turn to the Ordinanceand seek the true construction of the section from its provisions,since presumably the words were put there for some purpose.Even if the object of the Ordinance be not one to provide for oneuniform mode of executing wills, it is set out in the preamblethat it is expedient to provide a “ unifoim provision ….with respect to testamentary dispositions ”. The words ” for thepurpose of this Ordinance ” may well be taken to apply to thispurpose, although it is not the sole purpose of the Ordinance.
1 3 Moore (Privy Council) 344.
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This seems to me to be a reasonable interpretation of the words,and I have heard nothing that leads me to think that such aninterpretation is wrong. It is not an easy question 'to decide,but that is the construction that I would put upon the words.The provisions of section 5 therefore apply in this case.
The absence of any provision in the Ordinance similar to section24 does not to my mind present any difficulty. That sectionprovides that every will shall be construed to speak and take effectas if it haU been executed immediately before the death of thetestator, unless a contrary intention shall appear by the will. Mr.Soertsz argued that because we had no such provision in Ceylon,the will must be construed to speak from the date it was made.Section 24 however merely gives a rule of construction (Price v.Parker ') which had been in force before 1837, and was extendedby the Wills Act to other property mentioned. The effect of thesection is to limit in one respect the work of those who have toconstrue wills by laying down a definite rple of construction, unlessa contrary intention appears in the will. We have no such rulehere limiting an inquiry as to what is the real intention of thetestator as expressed in his will. Wills do not take effect from theday they are made, for they may be changed at any time. “ Testa-ments when made do not take effect until they are confirmed bythe death of the testator, for the will of a man is changeable solong as he continues to live.” (Van Leeuwen’s Commentaries,Kotze, vol. I., p. 325.) It is quite possible in certain cases thatthe date of the making of the will may have an important bearingupon the question of arriving at the intention of the testator inrespect of matters dealt with by him in his will, but it does not gobeyond that. So far as it assists the Court in ascertaining theintention of the testator as expressed in his will, the Court will lookat the date of the will, but otherwise that date of itself does hotgive the will any special virtue or effect.
1989
Dalton J
Qoonewar-dene o.Qoonewar-dene
It was urged for the appellant that the moneys by clause 2 investedat the date of the will upon mortgage bonds or promissory noteshad entirely disappeared by the time the codicil was made and thatany sums so invested after the earlier date came under the residuaryclause to the widow absolutely. If, however, in view of the pro-visions of section 5, the date of the will is to be taken to be August9, 1927, then the moneys referred to in the second clause must bethose invested at the later date, unless the ■ codicil shows anyintention to the contrary. Even if the testator in April, 1913, isdifferentiating between property ‘‘ now ” in existence, and propertyin existence ‘‘ at the time of my demise,” having regard to therule in respect of republicatdon, “ now,” by force of the codicilbecomes August, 1927, subject to what is said about intention.
1 (1848) 16 Simon, 198.
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1989.
Damon J.
Qoonewwr-dene v,Goonetear-dene
A large part of the argument advanced for appellant might havemuch greater force had there been no codicil, but even in such acase the question of construction would not have been an easy oneto answer.
With respect to the argument that the moneys invested onmortgages and promissory notes o'n August 7, 1913, are of the nature'of a special legacy and have been adeemed, we were referred toseveral authorities. It seems to me that these authorities have hobearing upon the law as it obtains here. We have no such preciseclassification of legacies as there is in English law, but, as pointed,out in Mohamed Cassim v. Mohameil Hassen,1 it is rather a questionof the testator’s' wish than a matter of law. Voet however doesdeal (XXX., 8. 17) with a legacy of species (particular things)and also of a genus (class of things), as where a testator wishes alegatee to acquire all the particular things comprised in a class.The moneys due on mortgage bonds and promissory notes here itseems to me fall within two classes and in no case can be said to bea species. One or more of the sums due oh the bonds, or on thenotes, might have been particularized from- the class dealt with,but as a matter of fact both classes have been dealt with as a whole.If these classes be regarded as debts due to the testator with whichhe has dealt, then the same conditions apply (Voet XXX., s. 20),and he goes on to point out what is the effect upon such a legacyof a change in the person of the debtors—:
“ It is moreover a sign of no change of intention if he (the legatee)shows that the testator has exacted payment of the debtleft by legacy in order to have the money in his hands. . . . So also if -the money has been gathered in,but again lent to other debtors, that change of debtors as,it were does neither nullify the legacy nor lessen it.”
It is the same also when such a collection of debts as a book ofdebts is left as a legacy. He says (XXX-, s. 25)—
• “ This class of debts is, in case of doubt, neither extinguished norlessened by payment of debts being enforced, but onedebt is substituted for another just as if there had beena changing of debtors’ names. So that the very moneywhich yas exacted is included in the legacy if it be againlent out and be included in the book of debts, just as alsois that which is afterwards for the first time included inthe book of debts-”
The moneys lent out on mortgage and promissory notes wouldfall in from time to time and be lent out again, and, as the amountshere show, greatly increased as time went on. The change resultingmerely from payment, followed by a fresh loan even to anotherdebtor, or the creation of fresh loans of the same kind do not of
1 29. N. L. if. 89.
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themselves show any change of intention on the part of the testator 1929.in making such a bequest as we have here. If, however, that inten- Damon j
tion can be safely gathered from other materials in the will, then
of course it must be given effect to. I can find nothing on the facts
here to support satisfactorily any conclusion that the bequest Qoonswar-
contained in clause 2 of the will has been either adeemed or tacitly <fen®
revoked. I might add here that it has been argued that, in view
of section 5 of Ordinance No. 7 of 1840, tacit revocation has no •
longer any place in our law, but if that is so the same must be said
of the doctrine of ademption, since .one kind of ademption at any
rate is based upon an amplied revocation of the specific gift (Jarman
on Wills llt p. 1157). It cannot be said that the bequest has in
any way been annihilated, or that nothing remains upon which
the terms of the bequest could operate. From what I state below
as the result of republication,, inasmuch as the will must be deemed
to have been made on August 9, 1927, a large part of the argument
addressed to the question of the testator’s intention in August, 1918,
can be put on one side. It is not necessary to consider what the
position would be had there been no codicil.
Taking the will and codicil as forming as far as they can onetestamentary disposition which has been made on August 9, 1927,the testator has given to his wife " all the moneys now invested ”by him on mortgage bonds or promissory notes and “ all cash indeposit ” to his credit in his No. 2 account in the. Mercantile Bankup to the time of her death or remarriage, and thereafter to herthree nieces absolutely. I can find njthing in the codicil expressingany intention or whence any intention can be inferred, that “ nowinvested ” meant invested in 1913. One would not of courseexpect to find anything of the kind, for it would be meaningless,since the testator must have been aware that the moneys investedon mortgage and notes at the time he made the will had all beenreinvested with additions on fresh bonds and notes,; nor can I findthat he was ignoring in his cc’Jicil the bequest in clause 2 of thewill on the footing that he was aware these moneys had becomepart of the residue. The republication of the will and the terms ofthe codicil lead one, having regard also to the provisions of section5, to the conclusion that the testator was amongst other thingsaffirming the provisions of clause 2 of the will and dealing withthe moneys therein referred to as they then existed.
The meaning and effect of “ republication ” has been dealt within various English authorities, all of which, so it seems to me, arein entire agreement with the principles of the common law thatgovern the subject.
In the case before us the codicil in express terms refers to the willwhich the testator confirms. He says “ Save as hereby alteredor modified I hereby confirm the said will. ’ ’ What is necessary
31/5-1928.
Dalton J,
Qoonewar-dene v.Goonewar-dene
( 20 )
to constitute' a republication is 'dealt with by Stirling J. in the caseof In re Smith, Bilhe v. Roper.1 It will be borne in mind of coursethat Ordinance No. 7 of 1840 deals with the requirement for thevalid execution of wills and codicils. He states that in his opinionthe best statement of the principle is to be found, in Barnet v.Crowe *:—
"If we disentangle ourselves from the rule that there shallbe no republication without re-execution the principlethat a codicil attested by three witnesses shall be arepublication seems intelligible and clear. The testator’sacknowledgment of his former will, considered as hiswill at the execution of the codicil, if not directly expressedin that instrument, must be implied from the nature ofthe instrument itself
In the case of In re Champion, Dudley v. Champion, 3 North J.considers the effect of such words as the testator has used here—
“ What is the effect of these words of confirmation? It issettled by authority that the effect of such a phrase as‘ I confirm my will in other respects ’ is a republicationof the will, and when under the old law a testator hadmade a will which would merely pass the property he badat the date of it, and then by a codicil he confirmed andrepublished his will, the effect was to bring down the dateof the will to the date of the codicil, and to make the devisein the will operate in the same way in which it wouldhave operated if the words of the will had been containedin the codicil of later date.’’
The old law referred to was no part of the Roman-Dutch law,and these authorities are cited of course to show the effect of re-publication as now provided for in section 5 of Ordinance No. 21of 1844. In re Champion (supra) was cited with approval by theCourt of Appeal in In re Fraser, Lowther v. Fraser. 4 It is therestated that .the effect of a codicil confirming a will is to bring thewill down to the date of the condicil, and effect the same dispositionof the testator’s estate as if the testator had at that date made anew will containing the same dispositions as the original will butwith the alterations introduced by the codicil.
There is however a limit on the application of this principle ofrepublication, for, as Parker J. points out in In re Park, Bolt v.Chester,5 if the will be treated for all purposes as having been madeat the date of the codicil, it may have the. effect in some cases
»(1893) 1 Ch. 101.
4 (1904) 1 Ch. 726.
' 45 Ch. D. 632.* 1 Ves. Jr. 486.
* (1910) 2 Ch. 322.
( 21 )
of revoking the will instead of confirming it. The rule is dearlystated by Bomer J. in the case of In re Hardyman, Teesdale v.McClintook1:—
" It is not right therefore to say that the effect of republicationof a will is that you must necessarily and for all purposesconstrue the will as though it had been made at the dateof the codicil. Barton J. in the case of In re Moore2 inmy opinion accurately sums up the law on the subject whenhe says ‘ The authorities which have been cited ’—mostly English authorities—‘ lead me to the conclusionthat the Courts have always treated the principle thatrepublication makes the will speak as if it had beenre-executed at the date of the codicil, not as a rigid formulaor technical rule, but as a useful and flexible instrumentfor effectuating a testator’s intentions, by ascertainingthem down to the latest date at which they have beenexpressed.’
1989.
Damon J.
Ooonewar-dene v.Qooneuxtr-dent
I venture to suggest that the principles of the Boman-Dutch lawgoverning the construction of wills and codicils would lead one tothe same end as that to which this rule leads one as is so succinctlyset out in the last few lines of the above remarks of Barton J.,without the assistance of any such artificial rule as is laid down ineither section 24 or section 84 of the Wills Act or as is containedin section 5 of our Ordinance.. If I am correct in that opinion, thenany limitation (contained in section 5) upon the application ui therule enacted in section 5 is immaterial so far as this case is concerned,for if that section does not apply here one falls back upon theprovisions of our common law.
The above authorities, or most of them, are referred to by BussellJ. in the case of In re Reeves, Reeves v. Pawson,3 which case the trialJudge follows. The effect of them is that one must apply the rulesas to republication “ with good sense and discrimination,” taking,the will and codicil together as forming one document and seekingto give effect to the intentions of the testator as expressed thereinand not to frustrate them.
For these reasons the codicil here has the effect of making thedevise in clause 2 of the will operate in the same way as it wouldhave operated if the words of the will had been contained in thecodicil, and the appellant is only entitled to the moneys invested atthe date of the codicil on mortgage bonds and promissory notesand to the cash in deposit to No. 2 account in the bank during herlifetime or until she remarry, and thereafter they vest absolutelyin the respondents.
1 (1925) 1 Ch. 287.
3 (1907) 11. R. 818.
* (1928) 1 Ch. 351.
( 22 )
1929.
Dalton J.
Qoonewaf'dene v.Qoonewar-dene
This case appeared to. us, after we had heard the facts stated byCounsel, to be one in which in all the circumstances a settlementmight well have been come to by the parties, seeing their closerelationship, and we accordingly gave every opportunity for thatbeing done, but unfortunately without result. The appeal thereforehad to be heard to a conclusion. I refer to this as it might havesome bearing upon the Court’s order as to costs. After carefulconsideration on this point, and further as one cannot say thatone side rather than the other unreasonably opposed a settlement,
I think this Court should direct that the costs of the parties be paidout of the estate.
The judgment of the lower Court is affirmed and the appeal isdismissed with costs, payable as denoted.
Akbar J.—
This appeal relates to the true construction of a will and codicilmade by one D. G. Goonewardene, Crown Proctor of Galle. Thewill was made on August 7,. 1913, and the codicil on August 9, 1927.The testator died on August 22, 1927, without revoking the will orthe codicil and probate issued on the will on September 22, 1927.
The material parts of the will and codicil are as follows: —
No. 208.
David George Goonewardene of Galle, hereby revoke allformer wills, codicils, and other testamentary dispositions made byme and declare this to be my last will and testament-
I give and devise to my beloved wife Margaret, my residing housecalled the “ Mound ” together with the land about 4 acres in extentwhereon the said house is built and now enclosed by a wall as alsothe house and premises standing opposite my said residing houseand purchased by me from the heirs of the late Albert Bastiansz.Provided however that my said wife shall not have the right to sell,gift, mortgage, or otherwise alienate the same but shall possess the ■same up to the time of her death or remarriage, whichever happensfirst. After her death or remarriage the said properties shall vestabsolutely in my three nieces. Eva Moonamale Goonewardene, IdaMoonamale Goonawardene, and Esme Moonamale Goonawardene,all of Kurunegala.
> I give and bequeath to my said wife all the moneys now investedby me on mortgage bonds or promissory notes, and all cash indeposit to my credit in my No. 2 account in the Mercantile Bank ofIndia, Ltd., Galle, subject to the direction that she is to have theinterest derived therefrom up to the time of her death or remarriageas aforesaid. Thereafter the same shall vest absolutely in mysaid three nieces.
( 23 )
I make the following bequests: —
.(a) My brilliant ring set with one stone (star pattern) to mynephew K. G. M. Goonewardene, Proctor, Kurunegala;
(b) My fitted suit case to our nephew and godson George Moona-male Goonewardene of Kurunegala;
(<;) The rest and residue of my cash found in my possession at the- time of my demise and also the money in deposit to mycredit in my No. 1 account in the Mercantile Bank of India,Ltd., Galle, in the Bank of Madras, Colombo, in theGovernment Savings Bank, and in the- Post Office SavingsBank and the amount of my policy of insurance togetherwith the profit thereof and all other movable propertyabsolutely to my said wife Margaret.
It is my wish and desire that my wife should out of her incomeregularly pay to her sister Ida Peries as much as she can. spare theamount of such sum being left by me to her discretion.
It is also my wish and desire that the executors of this my willshall after my demise sell by public auction my houses and carriages,my library and all other movable property save and except suchas my wife should like to retain, and shall pay the proceeds thereofto my said wife.
It is my wish and desire that my wife shall invest on mortgage ofimmovable property in Galle all moneys which she gets absolutelyunder this will and that she shall keep the same in the bank untilshe finds such safe and good investments.
I hereby nominate and appoint my brother Edward GregoryGoonewardene of Kurunegala and my brother-in-law Hector C.Peries of Galle to be the executors of this my will.
In witness whereof
7th August, 1913.
Signed, witnessed, aind attd..
No. 4,809.
I, David George Goonewardene of Galle, do hereby declare thisto be a codicil to the last will and testament made by me anddated 7th day of August, 1913.
Save as hereby altered or modified I hereby confirm the said will.
I give to my servant James in the event of his being' in my serviceat the time of my death the sum of Es. 400.
I give, devise, and bequeath to Hector Peries and his sister FlorenceIda Peries in equal shares the house and premises called and knpwdas “ The Bower,” situated in Eichmond Hill road, Galle, in w£kAithey now reside, subject to the condition that they shall not sell,
1089.
Akbab J.
Ootmetoar-
dem «.Gooneutar-dent
( 24 )
1829.
Akbar J.
Qoonewar-dene v.Qoonetvar-dene
mortgage, or otherwise alienate or- encumber the said premises orshare thereof and that the said premises or any share thereof shallnot be liable to be sold under execution against them or either ofthem and that on the death of either of them the share herebydevised and bequeathed to him or her shall devolve on his or herlawful issue and failing such issue oi»the survivor of them subjectto the same conditions and restrictions.
In the event of both of these dying without issue the said propertyshall devolve on the three daughters of my dead brother EdwardGregory Goonewardene in equal shares.
In witness whereof
Signed, witnessed, and attd.
9th August, 1927.
It is admitted that on August 7, 1913, the sums invested onmortgage bonds and promissory notes totalled about Bs. 39,000and that the money in deposit in No. 2 account of the MercantileBank, Galle, was about Rs. 1,250 on that date. On August 22,1927, the sums invested on mortgage bonds and promissory notesamounted to about Rs. 214,000 and the deposit in the No. 2 accountwas Rs. 6,920. It seems clear, and it was so admitted at the argu-ment, that on August 22, 1927, all the bonds and promissory noteswhich were in existence on August 7, 1913, were extinguished andwere replaced by other mortgage bonds and promissory notes. Thetestator left no children or other descendants. The contest is as tothe true interpretation, at the date of the death of the testator, ofthe words “ all the moneys now invested by me ” (which occur in thesecond disposition made by the testator in his will). The appellant’scontention was that the bequest o.f “ all the moneys now invested byme on mortgage bonds or promissory notes ” referred to the moneysinvested at the time of the will, that is 1913, and not to the moneysso invested at the time of the death of the testator in 1927, and thatas the bonds and notes which existed in 1913 were all dischargedand extinguished in 1927, all such moneys as were found to beinvested in 1927 in bonds and notes passed under, the residuaryclause {g) to the appellant, the widow. An elaborate argumentwas addressed to us by Counsel on both sides as to the meaningof the will as, it stood by. itself, and as to its meaning when read inconjunction with the codioil.
, In the view that I take of this case, it is unnecessary to speculateon" the effect of the will if there had been no codicil. The testatordid as ■ a matter of fact execute a codicil, and the two documentsmust be read together to find his true intention on the date that hemade the codicil.' The manner in which wills are to be executed inCeylon i6 dealt with in Ordinance No. 7 of 1840 (see sections 3 to 15).
( 25 )
It . will be seen that these sections are based on the correspondingsections of the English Wills Act of 1837. Then came OrdinanceNo. 21 of 1844, of which sections 1, 5, and 21 are based more or lesson the corresponding sections of the Wills Act of 1837. These twoOrdinances, Nos. 7 of 1840 and 21 of 1844, are the statutory enact-ments which deal with wills. The Courts in the Island have usuallyfollowed the English decisions in interpreting the sections of the twolocal Ordinances which are based on the Wills Act. For the rest,notably on questions of the interpretation of wills, resort must behad to the common law of the land, the Roman-Dutch law (seeMohamed Gassim v. Mohamed Hassen '). The first two things to benoted in the two Ordinances are that there is no section correspond-ing to section 24 of the Wills Act, and that section 5 of OrdinanceNo. 21 of 1844 is not word for word the same as section 34 of theWills Act. It seems to me that section 5 of Ordinance No. 21 of1844 plays an important part in the interpretation of the willand codicil before me and full effect must be given to it. Section 34of the Wills Act enacts that that act is not to apply to wills andcodicils made before January 1, 1838, and the importance of thesewords was explained in the case of Brooke v. Kent.2 In Ceylon, onthe other hand, there was an interval of time between the passingof Ordinance No. 7 of 1840 and that of Ordinance No. 21 of 1844,and section 14 of Ordinance No. 7 of 1840 made provision to someextent for wills and codicils made prior to February 1, 1840.Section 5 of Ordinance No. 21 of 1844, although it applied to willsand codicils made prior to February 1, 1840, clearly also applies towills and codicils made after December 23, 1844, the date on whichOrdinance No. 21 of 1844 came £nto force. If that section appliesto the will and codicil before me and is given its full effect, thesection bids a Court to “ deem ” the will as having been madeat the time at which it was re-executed, republished, or revived“ for the purpose of this Ordinance.” The only difficulty' that thesection offers is to be found in the- words “ for the purpose of thisOrdinance. ” Similar words occur in section 34 of the Wills Act,and a meaning can be given to these words in the English Act, for*many purposes are indicated in the various sections of that act.These sections are however not reproduced in Ordinance No. 21 of1844, but some are to be found in Ordinance No. 7 of 1840. But ameaning can be given to these words in the local Ordinance if welook at sections 1, 2 and 3, and perhaps 4. Section 1 is based on theEnglish Act (Section m.); section 2 and 3 are peculiar to theRoman-Dutch law. Under section 2, for instance, a will made byany male under the age of 21 years or by a female under the age of18 years is invalid, but majority can be.,attained by such a minor bymarriage or be conferred by letters of Venia Aetatis. A will may1 (1929) 29 N. L. B. 89.* 3 Moore'a P. C. Appeals, 344.
1929.
Akbar J.
Goonewar-dene v.Qoonewar-dene
( 26 )
1929.Akbab J.
Ooonewar-denev.Ooonewar•dene
be executed by a man under 21, but such a will would be invalidunless it is re-executed by a codicil when the testator has attainedmajority by marriage or by letters of Fent'a Aetatis even though hemay in fact be under 21 at the time, of the execution of the codicil.Further, under section 1 of Ordinance No. 21 of 1844 a testator isauthorized to dispose of by will (which includes a codicil, see section21), not only the property to which he is entitled at the date of thewill, but also the property to which he would be entitled at the timeof his death. I might mention here that the distinction which onceexisted in the English law between personalty and realty in so faras a. testator’s power to dispose of by will after-acquired property isconcerned and which distinction was removed by the Wills Act ■never existed in Ceylon (see Silva v. Silva ft al *)■ This may perhapsbe the reason why section 24 of the Wills Act was not reproducedin Ceylon. In my opinion, one of the purposes of the OrdinanceNo. 21 of 1844 mentioned in section 5 is the purpose indicated insection 1, that is to say, to enable a testator to dispose of after-acquired property, unless of course such an intention is clearlynegatived by the terms of the will and codicil. It is argued for theappellant that the intention of the testator at the date of the codicilwas not to bequeath the reversion of the moneys invested at the timeof his death in bonds and notes to his nieces but to give them allunder the residuary clause (g) to his wife. I do not think that suchan interpretation .is right for the following reasons :—The codicilmade only two alterations, by one of which he left a small sum ofmoney to his servant James and by the other he devised a housewhich he had acquired since 1913 to two persons but with thereversion to these three self-same nieces should the twodevisees die without lawful issue. Even in this devise the testator'sintention appears to be to benefit his nieces further than what hehad done by his will. At the date of the making of the codicil thetestator, who was a lawyer, must have known that all the bonds andnotes which existed in 1913 had ceased to exist and that the clausedealing with such investments in the will was practically a uselessclause. I cannot believe that when by his codicil the testator. proceeded to confirm his will, he meant to confirm a clause which hemust have known had lost its effect so far as the bequest of themoneys invested in bonds and notes were concerned. What is morelikely is that he intended to extend that clause so as to make itapplicable as if it were made at the date of the codicil. This sameclause also disposed of “ all cash in deposit to my credit in my No. 2account.” Clearly the effect of the codicil is not to restrict thisbequest to the Rs. 1,250 which was in deposit in 1913, but to makeit apply to the Rs. 6,920 in deposit at the time of his death. It
■ (1908) 10 N. L. R. 234.
( 27 )
should also be noted that the life-interest in the moneys invested inbonds and notes is left to the widow, and that it is only the reversionthat is to go to the nieces.
Counsel for the appellant then argued that the intention hecontended for was manifest by the use of the words “ at the time ofmy demise ” in paragraph (g). I think these words are nothing morethan mere words of description to earmark the money that would bein the immediate possession of the testator at the time of his death.In any event, whatever meaning the word “ now ” may have in thewill, we must construe it by reference to and along with the codicil.A further argument was pressed on us by Counsel' for the appellantthat there was an ademption of the moneys invested by the testatoron -bonds and notes when the bonds and notes were discharged andthe moneys recovered by the testator. To this contention there aretwo answers. The effect of section 5 was to make it appear as if thewhole will was re-executed in 1927. Further, the intention of thetestator in the will was to divide his property into certain classes orcategories; and his intention must be construed by the applicationof the rule in the Roman-Duch law stated by Voet in Books XXX.-XXXII., section 25 (see Buchanan's translation, page 31). Theextract is as follows:—
“ Not only single debts, but also universities (collections) of debts,as for example, a book of debts, can be left as a legacy.This class of debts is, in case of doubt, neither extinguishednor lessened by payment of. debts being enforced, but onedebt is substituted for another, just as if there had beena changing of debtors’ names. So that the very moneywhich was exacted is included in the legacy, if it be againlent out and be included in the book of debts,- just as alsois that which is afterwards for the first time included inthe book of debts; but not those debts which have beentranscribed and removed from the book of debts to otheraccounts
The modem English decisions seem to me to be to the same effect.(See In re Beeves, Beeves v. Pawson,1. and the cases quoted byRussell J.) As Russell J. stated, “ the will and the codicil aretreated as one document bearing the date of the codicil.
In my opinion, when the testator confirmed his will by his codicilof 1927 his intention was to confirm his bequest of the moneysinvested at the date of his death in mortgage bonds and promissorynotes to his wife for life and then to his nieces.
I would affirm the decision of the District Judge and dismiss theappeal with costs, the costs to be paid as directed by my brother.
Appeal dismissed.
1929.
Axbab J.
Goonewar-dene v.Qoonewar-dene
‘ (1928) 1 Ch. 351.