Jane Young V. Loku Nona Et Al.,

April.12,1911   Present: Lascelles C.J. and Grenier J.

In re the Last Will and Testament of Duncan Young.

JANE YOUNG v. LOKU NONA et al.

344-D. C. Kandy, 2,742.

requests by testator to woman with whom he was living in adultery- Validity-Undue influence-Costs.

A request by a testator to a married woman with whom he was living in adultery is valid.

IN this case the petitioner-respondent (who was executor under the will) sought to obtain probate of the last will and testament of one Peter Duncan Young, who had died on October 23, 1909. The appellant, the only sister of the deceased, and one of the heirs in the event of the intestacy, opposed the granting of probate on several grounds.

At the trial the second respondent (Loku Nona), the sole heiress under the will, was added as a party respondent at the instance of the Court, the learned District Judge being of opinion that it was advisable that she should be added in order that she might safeguard her interests.

The facts material to this report are set out in the following portion of the judgment of the learned District Judge (F. R. Dias, Esq.): -

" There is no difficulty as regards the first two questions, because it is admitted that Loku Nona was lawfully married to Don James, who is still alive, and from whom she has not been legally divorced, and that she was living with Mr. Young in his bungalow as his mistress at least since May, 1, 1008, and up to his death. The third issue is a pure issue at law, ass to which also there is no difficulty, for it is covered by authority. If we are governed by the Roman-Dutch law, pure and simple, there can be no question that this request is bad. The general doctrine of that system of law opposes to adultery so strong, a reprobation, that once adultery has been committed there results to the guilty parties an incapacity ever to marry one another or to take testamentary gifts from one another. Before we adopt this principle, how ever, we must pause and inquire whether the conditions under which we live are the same as those in regard to which alone that law was applicable. As we all know, under the Roman-Dutch law adultery was a crime, and a union between parties guilty of it was prohibited. But under our law, adultery, unlike incest, is not a criminal offence, nor is it prohibited by law, and after the dissolution of the marriage which made the relationship adulterous, the parties may oven marry. (Vide Karonchihamy v. Angohamy.1) Section 31 of Ordinance No. 6 of

1 (1904) 8 N. L. R. 1.

1847, recognizes the marriage of adulterers as valid, and it has been so held by our (Supreme Court in the same case above cited, and also by the Privy Council in the recent case of Robot v. Silva.1 Hence, in view of the fact that the living law of Ceylon recognizes the marriage of adulterers and the validity of testamentary gifts from one to the other, it is no longer possible to contend that such persons living in this country suffer from any of the disabilities imposed on them by the Roman-Dutch law.

" The only difference between the case last cited and the present one is, that in the former the testator married the woman with whom he had been living in adultery after she became a widow, while Mr. Young had not married Loku Nona. That, however, is not an element which has in any way influenced the decisions regarding the principle. Applying the same reasoning which was applied both by the Supreme Court and by the Privy Council in their decision, that the Roman Dutch law no longer applied to the question of marriages between persons who had lived in adultery, because adultery was not an offence in this country, it must be similarly held that testamentary gifts made by and between such parties are no longer obnoxious to our law. The one was a necessary corollary to the other."

The learned District Judge declared the will proved. The caveator appealed.

Bawa (with him Elliott), for the

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