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1892 Supreme(SC) 5
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD MACNAGHTEN, LORD MORRIS, LORD HANNEN, AND SIR RICHARD COUCH.
NAWAB SAHIB MIRZA - Appellant
Versus
MUSSAMMAT UMDA KHANAM - Respondents
On Appeal from the Court of the Judicial Commissioner of Oudh.
Decided On : Feb. 9; Mar. 5. 1892
Solicitors for Appellants: T. L. Wilson & Co.
A duly executed will is not revoked by a subsequent missing will unless clear evidence of inconsistency or express revocation is provided. Legacies designated from a specific fund are treated as demonstrative legacies, payable from the general estate if the specific fund fails.
Headnote:(A) Wills and Succession - Revocation of Will - A duly executed will is not to be treated as revoked, either wholly or partially, by a subsequent will which is not produced in court, unless it is proved by clear and satisfactory evidence that the later will contained either express words of revocation or dispositions so inconsistent with the earlier will that the two cannot stand together - The burden of proof lies upon the person who challenges the will that is in existence.
(B) Interpretation of Wills - Demonstrative Legacies - Where a will directs legacies to be paid out of a specific fund, but the language used is broad enough to encompass other assets, such legacies may be charged upon the general moveable property - In the event that the specific fund pointed out for payment fails, such gifts are regarded as demonstrative legacies and are payable out of the general estate.
Facts of the case:
The respondents, servants of the deceased, claimed annuities under a will dated 1860. The appellants, heirs and residuary legatees, contested the claim on two grounds: first, that the 1860 will was revoked by a subsequent will in 1876, and second, that the annuities were payable exclusively from specific funds over which the testatrix had no power of disposition at the time of death. The alleged 1876 will was not produced in court; only a letter mentioning the desire to execute such a will was available. The 1860 will specified that payments be made from a specific allowance and notes.
Findings of Court:
The court found that the 1860 will was not revoked because the alleged 1876 will was not forthcoming and there was no clear evidence of its execution or inconsistent terms. Regarding the construction of the 1860 will, the court held that the terms were broad enough to charge the annuities upon the moveable property of the deceased, including government notes.
Issues: Whether a duly executed will is revoked by a subsequent instrument that is not produced in court, and whether legacies designated to be paid from a specific fund are payable from the general estate if that fund is unavailable.
Ratio Decidendi: A will is not revoked by a missing document unless clear evidence of inconsistency or express revocation is provided, as the burden of proof rests on the party challenging the existing will. Furthermore, legacies designated from a specific fund are treated as demonstrative legacies, payable from the general estate if the specific fund fails.
Result: Appeals dismissed.
CONSOLIDATED appeal from a decree of the Judicial Commissioner (Feb. 9, 1888), reversing a decree of the District Judge of Lucknow (March 28, 1887), and restoring a decree of the Subordinate Judge of Lucknow(Nov. 1, 1886).
Law. Rep. 19 Ind. App. 83 ( 1891- 1892) Nawab Sahib Mirza V. Mussammat Umda Khanam
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The facts are stated in the judgment of their Lordships.
As to the second will in 1876, the Subordinate Judge observed that it bad not been produced, nor had it been proved that it had been duly executed, the probability being that it had not been executed, for in that case the testatrix would surely have withdrawn the will of 1860 from the wasika officer, or had it otherwise set aside. That there was not anything in the will of 1860 to indicate that it was made for a temporary purpose only, that its fulfilment did not depend solely on her returning from her pilgrimage, that it was not a conditional will. As to the validity of the prior will, the Court held that she could not make a devise out of the wasika, but there were other properties from which the stipends were to be paid, and these were not affected by Act XXIII. of 1871.
That from the 3rd and 5th clauses of the will, the pension of Rs. 4500, which the testatrix drew at one time, and which was discontinued in 1873, seemed to be included. Nawab Malka Jehan, however, had several lakhs of rupees in Government Promissory Notes, a very large proportion of which came into the Appellants possession as heirs, and that therefore the discontinuance of the pension did not deprive the Plaintiffs of their right to the stipends claimed, nor was it a revocation of the will, nor was the will revoked by the subsequent large gifts above mentioned. The Court therefore held that Plaintiffs were entitled to their stipends out of all moveables of the testatrix inherited by the Defendants. The word " etcetera " in the 5th clause was comprehensive enough to include all moveables.
The District Judge held that the covering letter of the testatrix, dated the 6th of December, 1876, sending the second will to the Commissioner, shewed that the terms of the new will differed from those of the will of 1860, that Sahib Mirza was appointed executor in the place of the Chief Commissioner, and a poor-house was provided for, that she had revoked her will of 1800, and had drawn up a new one, the distribution of the large sum of Rs. 18,500 to some of the legatees of the first will was evidence in support of the revocation, and silence in the letter of the 6th of December, 1876, in regard to the will of 1860, pointed to Nawab Mulka Jehan having executed the will of 1860 for a temporary purpose only. The District Judge therefore ordered the Plaintiffs suits to be dismissed.
The Judicial Commissioner generally concurred in the findings of the Court of first instance. He was of opinion that the correspondence of the Queen with the local authorities in 1876 clearly proved the animus revocandi, but it went no further ; that, on the contrary, it shewed that the new draft will was then not finally completed, that it was not registered, though she was expressly recommended by the Government to do so, and so the natural inference was that she laid aside her intention when she found that Government would not assist her; that this conclusion was strengthened by the fact that [she did not withdraw her will of 1860 from the wasika office. That this first will was an elaborate document, and there was nothing therein to shew that it had been executed for a temporary purpose only.
Rigby, Q.C., and C. W. Arathoon, for the Appellants, contended that this last decision was erroneous, and that the decree of the District Judge should be restored. The preamble of the will of 18G0 and its terms generally, the testatrix having made no reference thereto in her correspondence of 1876, and the effect of other acts on her part, shewed that that earlier will was intended to be effective only in case of her death while away
