In the Matter of the Last will and Testament of KOLAMBAPALATA- BENDIGE ABRAHAM P

124-nlr-nlr-v-03-in-the-matter-of-the-last-will-and-testament-of-kolambapalata-bendige-abraham-p

( 306 )
1898. In the Matter of the Last Will and Testament of KOLAMBAPATAMay 20. BENDiGE ABEAHAM PEBEBA, of Horatuduwa, deceased.
K . HABAMANIS PEBEBA and another, Applicants
and Respondents.
And
K . JOHANA PEBEBA and eleven others, Respondents
and Appellants.
D. C, Kalutara, 130.
Will—Execution in presence of five witnesses—Presence of notary—
Validity of will—Roman-Dutch Law—Ordinance No. 7 of 1840,
s. 3.
Per B O N S E R , C.J., and W E D H E B S , J. (dissentiente L A W R I E , J).—
Under section 3 of Ordinance No. 7 of 1 8 4 0 it is optional for an
intending testator to make his will before a notary public or before
five or more witnesses. The mere presence of a notary public
when a will is executed before five witnesses does not render it
invalid.
Per B O N S E R , C.J.—By the law of Holland a will might be made
either before a notary and two witnesses, or without a notary by
a will signed by the testator and seven witnesses.
By Ordinance No. 7 of 1 8 3 4 the testamentary power was enlarged
on the one hand and contracted on the other. It was provided
that no devise of immovable property should be valid unless duly
attested by a notary and two witnesses. On the other hand,
a testator in extremis was allowed to make a nuncupative will in
presence of two witnesses, who were to reduce it to writing and
within twenty days from the death make a declaration before
a notary. A will of movables signed by a testator in the presence
of seven witnesses was still valid.
The Ordinance No. 7 of 1 8 4 0 makes no distinction between wills
of movables and wills of movable property. It abolished nuncupative wills, and reduced the number of witnesses recmired to attest
a non-notarial will from seven to five.
The intention of the Legislature was to restore the option that
testators had under the Roman-Dutch Law of having their wills
either notarially attested or attested by witnesses.
The words in section 3 of Ordinance No. 7 of 1 8 4 0 , ” if no
notary shall be present,” mean ” if a notary shall not be present
in
his notarial capacity,” or, in other words, ” if the will be not
attested by a notary.”
T N this case two persons applied for probate of a will, bearing
dated 5th June, 1896, said to have been executed by one
Abraham Perera and his wife Johanna. Abraham Perera died on
10th June, 1896, five days after the execution of the will, leaving
him surviving his widow.
After the application for probate was made she and two other
persons interested in the estate of the deceased Abraham Perera
appeared before the Court and objected to the will being admitted
to probate. Their objections were heard by Mr. Haughton, District
Jadge. on 4th November, 1896, and on the 10th December
( 307 )
1896, he made the order nisi absolute. An appeal was lodged 1 8 8
against this order by some of the respondents, and the Appellate M a y
Court in setting aside this order remitted the case to the Court
below for further inquiry on the following issues :—
(1) Did the deceased Abraham Perera put his mark to the paper
sought to be propounded as his last will ?
(2) Was he of sound mind when he signed the document by
his mark ?
The case came on for trial on these two issues before Mr.
Boosmalecocq, who delivered the following judgment:—
” The notary who drew up the will states that he received
instructions from the deceased Abraham Perera to draw it on the
evening of 1st June, 1896, and he explains why he did not attest it
in the usual way, namely, because the eighth respondent, Mututantrige Siman Fernando (the real opponent), threatened that he
would impeach the will and spend hundreds of pounds in so doing,
as he had heard that a valuable piece of land situate in
the Cinnamon Gardens, Colombo, and which he claimed as his
property, was to be included in the bequest made by the will.
I shall advert to the subject of this land later on in my judgment.
The notary further explains how the will was signed by a cross
or mark only by the deceased, namely, because he was in too
feeble a state to sign his name as usual, and this explanation has
been fully borne out by the evidence of the attesting witnesses
to the will. The widow (Johanna Perera) admits having signed the
will in no less than six places, and she admits further that she saw
the mark put on each of these six places as and for the signature
of her husband at the time she signed, and she did not then
question the fact that her husband himself had made this
mark.
” So far, therefore, everything in connection with the making
of the will and its being signed by the deceased man and its
execution according to the requirement of the law seems to be
satisfactorily proved, but then comes the question, Was the deceased
of sound mind, memory, and understanding when he placed
his mark on this paper propounded as his last will and
testament ?
” To prove this and to prove the contrary no less than four
medical men have been called. A Sinhalese vedarala and a
young medical practitioner living in Moratuwa near the residence
of the deceased Abraham Perera, both of whom seem to have been
his regular medical attendants in his last illness, and two gentlemen holding high positions in Colombo and reputed to be the
ablest men in their profession in the Island, namely, Dr. Rockwood and Dr. Marcus Fernando. But the only one of these
( 308 )
1898. medical witnesses whose evidence is of any practical value for
MoyjlO. the determination of the second issue to be tried by the Court
is Dr. Rockwood, who saw the deceased on the evening of
the 2nd June, 1896. Dr. Rockwood distinctly proves that the
deceased was then in such a comatose lethargic state that he could
not possibly have given any instruction regarding the disposition
of his property, nor could he have spoken anything beyond
answering ‘ yes’ or ‘ no ‘ to questions put to him ; but the learned
medico never saw his patient again, and he admits that it
is just possible that the deceased might have rallied a little before
he died. So that there is still the possibility of the deceased
being able on the night between the 4th and 5th days of June to
understand what was being done when the will was read out to
him and when he put his mark to this document, and it must be
distinctly noted that the instructions to the notary to draw the will
were given on the evening of the 1st June, twenty-four hours before
Dr. Rockwood saw the deceased. I think, therefore, that the
evidence of the notary (a very respectable man) and of the
attesting witnesses, particularly of the aged man Lewis Fernando,
a brother of the opponent, Siman Fernando, should not be lightly
brushed aside and treated as untrustworthy, strange as may
appear some of the circumstances surrounding the execution of
the will.
” The evidence of the medical attendant, Dr. Fonseka, clearly
proves that a suggestion was made to the deceased to make his
last will on some date between 30th May and 2nd June, and this
witness goes so far as to admit that the deceased was on the 1st June
sufficiently rational to make his will. This admission, coming
from the son-in-law of the opponent, Siman Fernando, affords, I
think, strong corroboration of the evidence given by the notary
and attesting witnesses. Now, as to the evidence of the widow,
she never attempted, when she filed her disclaimer through learned
counsel on 12th October, 1896, to impeach the will in the
manner she has done, since she never entered a caveat, and she
admits she asked no questions about the deceased being able to
put his mark to the will in six places, although she now avers that
he had been unable to speak or to move from his bed for six or
seven days before he died. On looking through the notes made
by Mr. Haughton when he heard the argument of counsel in
November, 1896, I find it recorded that Mr. Dias (counsel for the
widow) said : ‘ First respondent admits the signing of the will,
and has only a law issue for decision.’ This clearly shows that
she has been prompted by others to withdraw from her former
attitude.
( 309 )
” Then, so as the crux of the opposition by the respondent, Siman 1898.
Fernando. His own affidavit, filed on 19th August, 1896 (letter D), M a V 20.
shows that he was playing a deep game, for he then deposes that
Abraham Perera had left no will, whereas he knew that a will
was about to be drawn on 4th June; and the affidavit filed by
him on 26th October shows that his ohief objection to the will
was the inclusion of the valuable piece of land situate in Cinnamon
Gardens, Colombo, which he claims as his own property.
He has produced the Crown grant for it, and this appears to be
made out in favour of Kolombapatabendige Abraham Perera,
the deceased testator. A reference to the 15th clause of the
will shows, too, that this valuable bit of land, estimated in the
inventory to be worth Rs. 7,500, has been specially devised to the
widow to be sold and the proceeds spent in building a suitable
house for her to live in—a clear proof that she had a hand in giving
instructions for the will to be drawn. All these circumstances go to show that the opposition to the will on the ground of
the unsoundness of mind of the testator is not made bond fide, and
that the opponents have been actuated by other motives. It was
contended by the learned counsel for the opponents that Johannas
de Mel was the real originator of the will, and that he conspired
with the attesting witnesses to get it drawn by the notary, so as
to get certain benefits under it for his wife. I do not deny that
there is some cause for this allegation, but, as I said before, not a
single person has ventured to enter a caveat against the will and
to impeach it on the ground of fraud or undue influence.
” As the matter stands before the Court now, I find on the two
issues framed by the Appellate Court that (1) the deceased
Kolombapatabendige Abraham Perera did put his mark to the
paper (marked letter A and bearing date 5th day of June, 1896)
sought to be propounded as his last will; and (2) that the said
K. Abraham Perera was of sound mind when he signed the said
paper by his mark.
” I therefore admit the said paper (letter A dated 5th June, 1896)
to probate and make the order nisi entered in this case on
19th September, 1896, absolute. I further make order that the
applicants, as executors of the will, do recover all their costs from
the date of the said order from the fifth and eighth respondents
(K. Bastian Perera and Mututantrige Siman Fernando), and that
the widow (first respondent) do bear her own costs.”
The fifth, sixth, seventh, and eighth respondents appealed.
Dornhorst, with Morgan, Pieris, and Asserappa, for appellants.
Grenier, with W. Pereira and Rudra, for applicants, respondents.
Cur. adv. vuU.
( 310 )
1808. 20th May, 1898. LAWRIE, J —
May 20.
By the Ordinance No. 7 of 1840, section 3, it is enacted that no
will, testament, or codicil containing any devise of land or other
immovable property or any bequest of movable property, or for
any other purpose whatsoever, shall be valid, unless it shall be in
writing and signed at the foot or end thereof by the testator or
by some other person in his presence and by his direction; and
each signature shall be made or acknowledged by the testator in
the presence of a licensed notary public and two or more
witnesses, who shall be present at the same time and duly attest
such execution; or if no notary shall be present, then such
signature shall be made and acknowledged by the testator in presence
of five or more witnesses present at the same time, and such
witnesses shall subscribe the will in the presence of the testator,
but no form of attestation shall be necessary.
In my opinion this clearly means that a will subscribed in presence
of five or more witnesses without a notary’s attestation shall
be valid only if no notary be present.
In the present case of the will the evidence led shows that a
duly licensed notary public received instructions from the
testator, that he carried out these instructions by drawing a will,
that he brought that will to the house of the intending testator,
and that a notary refused to attest the will, and that it was signed
by the testator and five witnesses in the notary’s presence, he
taking no part in the signing.
This will, then, in my opinion, is not valid ; it was executed
in the presence of a notary, but it was not attested by him. It is
not a document which can be admitted to probate, and I would
set aside and dismiss the application with costs.
BROWNE, A . J . —
Section 14 of Ordinance No. 7 of 1840 and the decision in 9
8. C. C. 146, have enlarged the opportunities for notarial attestation of any will by permitting any licensed notary whatsoever to
attest a will, though the body of it be written in a language in
which he may not be licensed to practise, and the place where it
is executed is not within the district for which he is licensed.
I therefore do not see why the words in section 3 of Ordinance
No. 7 of 1840, ” if no notary shall be present,” should be construed as meaning anything else than the simple bodily presence
on the occasion of any one who is then a licensed notary for any
place and any language in Ceylon. If such a person be present,
I would hold with my brother that he must as notary attest the
execution of the will to give it due legal validity.
( 311 )
These judgments were brought up in review preparatory to 1808.
an appeal to Her Majesty in the Privy Council, before BONSER, May 2°’
C.J., and LAWRIE and WITHERS, J . J .
Layard, A.-G., appeared for appellants.
Waller Pereira, for respondents.
Cur. adv. vult.
WITHERS, J.—
In this case we are called upon to review a decision of my brother
LAWRIE and Mr. Acting Justice BROWNE, who held that a will
made in the presence of five witnesses at the same time and
subscribed by the witnesses in the presence of the testator
was invalid, because at the time and place when the will
was so made there was present a notary public of the district,
licensed to practise in the language of the will. These testamentary proceedings had been the subject of a previous appeal to this
Court, and the record had been remitted to the Court below to try
and determine the following two issues: “Did the • deceased
” Abraham Perera put his mark to the paper sought to be pro-
” pounded as his last will ?” ” Was he of sound mind when he
“signed the document by his mark ?” Both issues being found
in
favour of the propounder, the instrument was admitted .to
probate. The judgment of the Court below was appealed from,
and I understand that, when it transpired in the course of argument
that a notary was present when the will was being made,
it was suggested by one or other of the learned Judges that
the will so made was inoperative by reason of the provisions of
section 3 of Ordinance No. 7 of 1840, entitled ” An Ordinance
“to provide more effectually for the prevention of Frauds and
“Perjuries.” The 3rd section of that Ordinance enacts “that
” no will shall be valid unless it shall be in writing and executed
“in manner hereinafter mentioned; that is to say, it shall be
” signed at the foot or end thereof by the testator in his presence
“and by his discretion, and such signature shall be .made or
” acknowledged by the testator in the presence of a licensed notary
” public and two or more witnesses, who shall be present at the
” same time and duly attest at such execution ; or if no notary
” shall be present, then such signature shall be made or acknow-
” ledged by the testator in the presence of five or more witnesses
” present at the same time, and such witnesses shall subscribe
the will in the presence of the testator, but no form of attestation
“shall be necessary.” Section 8 of the same Ordinance further
enacts ” that every will executed in maimer hereinbefore required
26-
( 312 )
1898. <•
s n a ] i D e valid without any other publication thereof, i.e., during
May 20. « t n < J i i f e t i m e 0 f t n e testator or testatrix.’*
J. The facts of the case before us are briefly these. When this
will was being executed there was present a notary public
competent to attest its execution, but he declined to act as a
notary in the matter. Different reasons were suggested for his
declining to act. So long as he did decline to act—and this is
admitted—I do not think it matters what his reasons were.
What, then, is the meaning of the words in the 3rd section of
Ordinance No. 7 of 1840, ” or if no notary is present.” I must
confess that until the judgment in review was read to us, I had
always understood this section to mean that it was optional for an
intending testator to make his will before a notary public or
before five or more witnesses. The contrary opinion of the two
learned Judges who concurred in that judgment naturally arouses
a distrust in my own opinion. At the same time, and with all
deference to those learned Judges, I retain the opinion which
I always had on the matter.
The mere presence of a notary incompetent from some affection of the mind or body to perform the functions of a notary
would prevent the testator from summoning five witnesses to
attest the execution of a will, which it might be of the utmost
importance immediately to execute. The intention of the section
is to my mind best brought out if we mentally add the words ” for
that purpose,” i.e., if no notary shall be present for that purpose.
In other words, you can call in a competent notary to make your
will. If you do not choose to employ a notary, you can call in
five or more witnesses. The learned Attorney-General argued
that if the Legislature had intended to give a testator such a freo
option the Legislature would have expressed itself in clear, unambiguous language. To my mind this intention is clearly enough
expressed.
In my opinion, the judgment in review should be reversed
and the judgment in the Court below restored.
L A W B T E , J.—
An Ordinance of the Legislature of Ceylon must be construed
in
the same way as an English Act of Parliament. ” We must
” apply the rule of construction that an Act of Parliament is to be
” construed according to the ordinary meaning of the words in the
” English language as applied to the subject-matter, unless there
” is some strong ground derived from the context why it should
” not be so construed.”
( 313 )
The words ” or if no notary shall be present” are unambiguous. 1898.
It is unnecessary to discuss the question (asked by the Chief MayW.
Justice in his judgment) whether a man be present, if he be asleep, L A W R I E , J .
or drunk, or of unsound mind, nor is it necessary to determine
what proximity constitutes presence, for in the case before us
the notary was of Bound mind, he fully understood and indeed
directed w h a t was done, he was in the room where the sick man
lay. It seems to me unnecessary to enter on the question whether,
if a notary was present, not in his professional capacity, but as a
friend or relation or aa an accidental visitor, it could be said that
a notary was present. For here the notary was present as notary ;
he had been instructed to draw up a will at the request of the
intending testator; he brought it prepared for signature ; the
testator desired him to attest it. The notary gave professional
advice. He advised that the will prepared by him should be
signed in the presence of five witnesses ; he said that the will would
be valid if so signed. He was present when the testator
made a mark and when five witnesses signed. His clerk (whom
he had brought with him) wrote an attestation clause. If ever a
notary was present, he was present on the occasion referred toTo me it seems clear that the Legislature enacted that a will
made in a notary’s presence is invalid unless he attest it. This
will was in fact signed in the notary’s presence, and in fact he
did not attest it; if he believed the testator to be of sound mind
and understanding, he was bound to attest it; it was unlawful to
refuse to perform the duties of his office.
The Ordinance No. 7 of 1840 was passed to provide more
effectually for the prevention of frauds and perjuries. In Ceylon
two of the evils to be prevented were forgery and perjury.
Confidence was placed in the integrity of .notaries public ;
the Legislature enacted that no writing permanently affecting
immovable property should be valid unless executed before a
notary.
The next section enacted that all wills must be executed in the
same way as writings affecting lands—they too must be executed
before a notary, but an exception was introduced in favour
of wills made when no notary was present. In such a case (but
in
no other case) would a will be valid if executed before
witnesses only. The absence of a notary excuses the want of a
notary’s attestation, but there is no other excuse. This will,
in my opinion, cannot be admitted to probate because its execution
by the testator and witnesses was not attested by the duly
licensed notary public, who, it is proved, and whom himsolf
admits, was present.
( 314 )
1893* BONSER, C.J.—
May 20.
The only question before us on this application for review is,
whether a willwas validly executed which was signed by the testator
in the presence of five witnesses, who at the same time and
in the presence of one another and the testator subscribed
their names as witnesses. The circumstances under which the
will was executed appear to be as follows.
The testator gave instructions to a notary to prepare a will
to be executed before and attested by the notary in the usual
way. The notary prepared the will according to the instructions
and took it over and explained it to him. The testator being
satisfied that it carried out his wishes prepared to execute it then
and there in the presence of the notary and two witnesses. The
notary, however, declined to attest the will, being unwilling, as
he says, to offend an influential client, who objected to the will.
He suggested that another notary should be sent for, and accordingly another notary was sent for, but was unable to come.
The notary then went away, taking the draft with him. The
same evening he was sent for by the testator and went to the
testator’s house with the draft will. The testator again requested
him to attest the will. He again refused to do so, and suggested
its being signed by the testator and five witnesses. Five persons
were then called into the room, and in their presence the testator
signed the will, and they in the testator’s presence and in the
presence of one another subscribed their names as witnesses.
It has been held by this Court in the judgment under review
that the will is invalid because the notary was in the room at the
time the will was signed.
The validity or otherwise of the will depends on section 3 of
Ordinance No. 7 of 1840, which runs as follows : ” And it is further
” enacted that no will, testament, or codicil containing any devise
” of land or other immovable property or any bequest of movable
” property, or for any other purpose whatever, shall be valid,
” unless it shall be in writing and executed in manner hereinafter
” mentioned ; that is to say, it shall be signed at the foot or end
” thereof by the testator or some other person in his presence and
” by his direction; and such signature shall be made or acknow-
” ledged by the testator in the presence of a licensed notary
public and two or more witnesses who shall be present at the
” same time and duly attest such execution ; or if no notary shall
‘* be present, then such signature shall be made or acknowledged
” by the testator in presence of five or more witnesses present at
” the same time, and such witnesses shall subscribe the will in
” the presence of the testator, but no form of attestation shall be
” necessary.”
( 31 5 )
It will be useful to ascertain the state of the law as to testa- 1 8 9 8 *
mentary instruments at the date of the passing of Ordinance No. 7 M a y 2 0 ‘
of 1840. BOWSES, O J .
By the law of Holland a will might be made either before a
notary and two witnesses, or without a notary by a will signed by
the testator and seven witnesses.
By Ordinance No. 7 of 1834 the testamentary power was enlarged
on the one hand contracted on the other. The power of
making a will without a notary was taken away as regards
immovable property, and it was provided that no devise of
immovable property should be valid unless duly attested by a
notary and two witnesses. On the other hand, a testator in
extremis was allowed to make a nuncupative will in presence of
two witnesses, who were to reduce it to writing and within twenty
days from the death make a declaration before a notary. A will
of movables signed by a testator in the presence of seven witnesses
was still valid.
The Ordinance No. 7 of 1840 made no distinction between wills
of movables and wills of immovable property. It abolished nuncupative wills and reduced the number of witnesses required to
attest a non-notarial will from seven to five, possibly because five
was the number of witnesses required by the later Roman Law.
Van Loeuwen, in his Commentaries (3, 2, 7), states that wills
executed before a notary and two witnesses were in his time
considered to include and be of equal validity with those executed
before five witnesses; for by the Roman Law a notary alone had
as much credit as three other witnesses, and that he being added
to the two witnesses made up the required number of five
witnesses.
The Attorney-General contended that the Ordinance of 1840
did not give testators the option between a notarially executed
will and a will executed attested by five witnesses, but that if it
was possible to obtain the presence of a notary it was not competent
to a testator to make any other than a notarial will.
It seems to me that that would be a very inconvenient state of
the law, for in that case it would be necessary, whenever a nonnotarial will is propounded, to inquire whether the attendance of
a notary could have been procured. To my mind it would seem
more reasonable to hold that the Legislature intended to restore
the option that they had under- the Roman-Dutch Law of having
their testaments either notarially attested or attested by witnesses.
I construe the words “if a notary shall not be present” to mean
” if a notary shall not be present in his notarial capacity,” or, in
other words, “if the will be not attested by a notary,” Some
( 316 )
1898. qualification of the words is obviously necessary. Is the presence
May 20. 0 f a notary who is drunk or asleep, or lunatic, or not known to be
a notary, or mad, or otherwise incapacitated from acting, a
presence within the meaning of the Ordinance ? I think not,
and I am of opinion that the mere presence of a notary in the
room, when this will was executed, did not render it invalid.