Walter Carew V. Mary Carew & Anor (1934)

LawGlobal Hub Judgment Report – West African Court of Appeal

Lost Will—Proof by parol evidence mast taw Court without reasonable doubt of existence of will and intention,’ of Testator.

The facts of the case are sufficiently oat out in the judgment.

fromE. A. C. Davies for the Appellant.

judgment

C. E. Wright for the Respondente.

of the

SupremeThe following judgment was delivered :-

CourtBUTLER-LLOYD, J.

of ^Sierra Matthew John died on the 10th May, 1918.

Leone.

He left a widow who died in 1925, but no children. Apart

from the widow his next of kin were two nieces, the present defendant-respondents. The first respondent lad two sons, hmes Carew who dies in 1928, and the present plaintiff-appellant. Matthew John died possessed of property at Na. 10 Mountain Out, 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 deceaeed in 19/7, 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 6* 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, Barlett, 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 Waitft that the contentswill wortillit-vreiounde& by plaintiff, ana finally that ^Csⁿ‘ be handed the le Arst-4.11usisai in 192Z, since when be boa ,⁷*

^sa

not seen it

C^umiw are and

On this *Vi1611430 learned tria Judge ozone to the COliellialoa itatUrah that the plaintiff had failed to estaMislt the will to hie satisfaction Rollings and dismissed the action.

The proof of a lost will is always a difficult matter_t_and th_e By- thw^–_is difficulty is considerably increased WIWI’. no draft or copy is available. In W oodward Voutatane II App. Cases at p.

Lord Iferschell said :—

” Now I cannot but be alive to the extreme danger of establishing $ 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 a manner as to leave no doubt, if 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 oit 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= testa-

mentary 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 bad 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 unhnoWn is not an insuperable difficulty as is shown by Phibbe case, 86 L.J. p. 82. Nor did Mr. Justift Low, who tried that case, consider that the absence of assent on the part of those entitled on an intestacy would be a fatal obstacle where the contents of the will and its due execution were satisfactorily proved. The present case differs however toto caeca from Pliibb’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 a letter written by the testator to his executor’ confirming the contents of the will wm before the Court.

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I

am satisfied that the learned trial Judge Was^—inn

to the conclusion that the evidence^–Wm*^. him_ in this

case was insufficient to establish^– prayed tom ^–satis-

faction and that the appeal ought to be dismissed.

DEANE, C.J., GOLD COAST._ – – I concur.

WEBBER, C.J., SIERRA LEONR. I concur