In the Matter of the Last Will of the late Gamage Don Samuel and his wife Tibbotuwawegamage Babahami. Gamage Don Siman and others, Petitioners, Respondents. Gamage Punchibaba and eleven others, Respondents. Gamage Lokuhamy, Respondent, Appellant.

In the Matter of the Last Will of the late Gamage Don Samuel

and his wife Tibbotuwawegamage Babahami.

Gamage Don Siman and others, Petitioners, Respondents.

Gamage Punchibaba and eleven others, Respondents.

Gamage Lokuhamy, Respondent, Appellant.

D.C., Matara, 1,039.

 

Last will-Application for probate upon copy of a lost last will-Presumption of destruction by testator-Grant of administration as in case of intestacy-Ordinance No. 7 of 1.840, s. 6--Notaries Ordinance, 1877, s. 26, sub-section 12.

Where a husband and wife made a joint will in 1877 and, upon the death of the wife in 1888, her husband, not being able to find the lost will, averred that his wife had died intestate and applied for and obtained letters to administer her estate, and he himself died in 1892, held, that it was not open to their children to apply for probate upon a copy of the alleged last will, unless they rebutted the presumption of law (arising from the circumstance that, after the execution of the said will, it was in the possession of the testators but was not forthcoming) that such testators had destroyed it with the intention of revoking it.

Held further, that in such a case administration shall be granted as in a case of intestacy.

Bonser, C. J.-It is the duty of a notary who attests a last will to preserve a draft minute or copy thereof, under Ordinance No. 2 of 1877,-section 26, sub-section 12,

THIS was an appeal from an order of the District Judge of Matara whereby he directed that a copy of the alleged last will of Carriage Don Samuel and his wife be admitted to probate. The facts of the case are fully stated in the judgment of the Chief Justice.

Wendt, for objector.

Dornhorst (with Morgan de Saram), for petitioner, respondent.

27th February, 1896. Bonser, C.J.-

In this case a man called Don Samuel, who was the husband of one Babahami, is alleged, jointly with his said wife, to have made a will as far back as 1877, by which their property was given to a friend and the rest of the property was divided among their eight children named. Babahami died in 1888 and, upon her death, Don Samuel took out administration to her estate on the footing that she had died intestate. Don Samuel himself died in 1892.

Certain of the children of Don Samuel presented a petition to the District Court of Matara asking to have the alleged will of 1877 proved. Air. Wendt's client, Lokuhamy, was a respondent to that petition find opposed the application.

The will itself was not forthcoming, but what was said to have been a copy of it. was produced. It does not appear from whose possession this document came, hut it was stated that it was given

to Don Samuel in his lifetime on his representation that he had lost the original; but the evidence on this point is by no means satisfactory. The notary who is alleged to have attested the will was called, but it appeared that it was not he who gave the copy, but that it was given by his clerk, who was not called, and I am not altogether satisfied that the document produced was the copy of the will. I may here mention that it was stated in the course of the argument that it was not the practice of notaries to observe the 12th rule contained in section 26 of the Notaries' Ordinance, 1877, which requires a notary to preserve a draft minute or copy of every deed or instrument executed or acknowledged before him. It was stated that the rule was observed only so far as deeds were concerned; but it seems to me unfortunate that such should be the case, for a record of a will, signed in duplicate by the testator and the attesting witnesses, would be most valuable in many cases. If the document here produced had been a documen

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