008-NLR-NLR-V-04-Re-Last-Will-and-Testament-of-A.-Hendricks-and-S.-Hendricks.pdf
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1900.
March 19.
Be Last Will and Testament of A. Hendricks andS. Hendricks.
D. G. (Testamentary), Galle, 12.
Last Will—Delay in application for probate.
An executor, who produces in court the last will of a testator whohad died many years since its production, should be called on to explainhis delay, and if it be found to be wilful, lie may properly be punishedunder section 517 of the Civil Procedure Code.
If a third of a century has not elapsed since the death of the testatorthe will may be admitted to probate.
In the case of a stale application for letters of administration, the courtwill not grant-them except necessity for administration be shown.
N his petition to the District Court, dated 5th February, 1900,
the petitioner stated that Arnoldus. Hendricks and SamaliaHendricks, husband and wife, made a last will on the 14thDecember, 1868, appointing the petitioner and Charles Samueltheir executors; that the testator died about twenty-nine yearsago, and the testatrix about twelve years ago; that CharlesSamuel was also dead; that as one of the devisees named in thewill had sold her share of the property left to her to a personprohibited by the 2nd clause of the will, a probate had nowbecome necessary. The petitioner prayed for a commission ofappraisement and citation to next of kin and for probate of will.
The District Judge disallowed the application, as it was too stale.
The petitioner appealed.
Sampayo, for appellant.
16th March, 1900. Lawrie, J.—
An application for probate of an old will should, I think, bedealt with differently from a stale application for administration.In the latter case, the Court will not exercise its power toappoint an administrator except necessity for administrationbe shown; but in the former case, it is generally right that thequestion should be tried whether a document produced within,say, a third of a century from the death of a testator be or be nota valid testament.
If it be proved to be genuine, let letters of probate issue to theexecutors valeat quantum. It may be that the estate has mean-while passed into other hands who are not affected by theprovisions of the will. In a recent case from the NegomboDistrict Court, we admitted an old will to probate.
Cur. adv. vult.
Hero, I think, the executor who produces the will of his fatherand mother- who died many years ago should be called on toexplain his delay; and if his omission to produce the will earlierhe shown to have been wilful, he may properly be punished undersection 517 of the Civil Procedure Code.
The order of the Court below is set aside and ease remitted forfurther proceedings according to law.
1904.March 18.
Lawbjb, J.
Bbowne, A.J.-—I agree.