–
WALTER SHEPHERD CAREW
V.
MARY ANN CAREW AND ANOTHER
WEST AFRICAN COURT OF APPEAL HOLDEN AT FREETOWN, SIERRA LEONE
10TH DAY OF OCTOBER, 1934
2PLR/1934/30 (WACA)
OTHER CITATION(S)
2PLR/1934/30 (WACA)
(1934) II WACA PP. 106-108
LEX (1934) – II WACA PP. 106-108
–
BEFORE THEIR LORDSHIPS:
DEANE, C.J, GHANA
WEBBER, C.J. SIERRA LEONE
BUTLER-LLOYD, J.
–
REPRESENTATION
E. A. C. Davies — for the Appellant
C. E. Wright — for the Respondents
–
BETWEEN
WALTER SHEPHERD CAREW — Plaintiff-Appellant
AND
MARY ANN CAREW (WIDOW) AND KETURAH ROLLINGS (WIDOW) — Defendant- Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
ESTATE ADMNISTRATION AND PLANNING — WILL:- Lost Will — Onus and burden of proof thereto — Parole evidence which leaves Court with reasonable doubt of the existence of will and intentions of Testator — Proper order for court to make
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:-
1. The direct evidence as to the due execution of the will, and as to its contents, is limited to the evidence of one witness who first saw it in 1919 and had not seen it since 1927, and whose memory of the contents is so incomplete that he cannot even recall the names of the attesting witnesses. It is impossible also not to discount his evidence to some extent on account of his failure in his obvious duty to obtain probate of the will, which he says was in his possession for eight years.
2. The present case differs however toto caelo from Phibbs case, 88 L.J. p. 82., in that in that case there was reliable evidence that there was a proper attestation clause duly signed by the witnesses, and further that á letter written by the testator to his executor confirming the contents of the will was before the Court.
3. The trial Judge was right in coming to the conclusion that the evidence adduced before him in this case was insufficient to establish the will propounded to his satisfaction.
Appeal dismissed.
–
–
MAIN JUDGMENT
The following judgment was delivered:
BUTLER-LLOYD, J.
Matthew John died on the 10th May, 1918.
He left a widow who died in 1925, but no children. Apart from the widow, his next of kin were two nieces, the present defendants-respondents. The first respondent had two sons, James Carew who dies in 1928, and the present plaintiff-appellant.
Matthew John died possessed of property at No. 10 Mountain Cut, Freetown. No Letters of Administration in respect of his estate were granted. On 2nd January, 1933, the plaintiff took out a writ claiming to be the sole devisee of the property under a will alleged to have been made by deceased in 1917, subject to prior life interests to the widow and James Carew. Defendant entered an appearance to the writ, but merely insisted on plaintiff proving the alleged will in solemn form.
On the case coming up for hearing, evidence was called on behalf of the plaintiff, and after hearing argument the learned trial Judge gave judgment on the 13th November, 1933, dismissing the action; and it is from this judgment that the present appeal is taken.
The evidence called for the plaintiff was that of himself and R. C. P. Barlatt, alleged to have been named as executor, together with one Fergusson, now deceased, in the will propounded. A note of evidence given by first defendant on an inquiry held in May, 1933, and certain letters written by her were also put in.
Plaintiff’s evidence was to the effect that he saw the draft of a will which was prepared in Mr. S. J. S. Barlatt’s office, and that he handed it to deceased but did not know whether it was ever executed.
The alleged executor, Barlatt, gave evidence that the will was given to him in 1919 by the widow, that he saw and recognised testator’s signature, that there were signatures of two witnesses whose names he could not recollect, and that he read the will, and that the contents were as propounded by plaintiff, and finally that he handed the will to defendant in 1927, since when he had not seen it.
On this evidence, the learned trial Judge came to the conclusion that the plaintiff had failed to establish the will to his satisfaction and dismissed the action.
The proof of a lost will is always a difficult matter, and the difficulty is considerably increased where no draft or copy is available. In Woodward v. Goulstone 11 App. Cases at p. 476 Lord Herschell said:
“Now I cannot but be alive to the extreme danger of establishing a will merely by parol evidence of its contents. The legislature has endeavoured to safeguard the interests and rights of testators by requiring that the expression of their testamentary intentions shall be authenticated in such manner as to leave no doubt, it possible, that the Court has before it that which really expresses the will and intention of the testator. It is not enough that it is in his own handwriting; it must, even if in his own handwriting, be authenticated by witnesses who must be present and see the testator sign, and must sign in each other’s presence. I think, therefore, that in order to support a will propounded, when it is proved by parol evidence only, that evidence ought to be of extreme cogency, and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary intentions of the testator.”
In the present case the direct evidence as to the due execution of the will, and as to its contents, is limited to the evidence of one witness who first saw it in 1919 and had not seen it since 1927, and whose memory of the contents is so incomplete that he cannot even recall the names of the attesting witnesses. It is impossible also not to discount his evidence to some extent on account of his failure in his obvious duty to obtain probate of the will, which he says was in his possession for eight years. It is true that the fact that the names of the attesting witnesses are unknown is not an insuperable difficulty as is shown by Phibbs case, 88 L.J. p. 82. Nor did Mr. Justice Low, who tried that case, consider that the absence of assent on the part of those entitled on an intestary would be a fatal obstacle where the contents of the will and its due execution were satisfactorily proved. The present case differs however toto caelo from Phibb’s case, in that in that case there was reliable evidence that there was a proper attestation clause duly signed by the witnesses, and further that á letter written by the testator to his executor confirming the contents of the will was before the Court.
I am satisfied that the learned trial Judge was right in coming to the conclusion that the evidence adduced before him in this case was insufficient to establish the will propounded to his satisfaction and that the appeal ought to be dismissed.
–
DEANE, C.J., GOLD COAST.
I concur.
–
WEBBER. C.J., SIERRA LEONE
I concur.
–