Appuhamy V. Perera Et Al.,

Present: Lascelles C.J. and Middleton J.    Oct.6,1911

APPUHAMY v. PERERA et al.

128-D. C. Kurunegala, 1,017.

Codicil-Revocation of will by destroying it-Is codicil also revoked ?- Ordinance No. 7 of 1840, s. 5

A testator intended to revoke both his will and codicil, but by mistake or ignorance destroyed only the will.

Held, that the codicil was not revoked.

Lascelles C.J.-Testamentary instruments can be revoked only in the ways prescribed in section 5 of Ordinance No. 7 of 1840; it is not open to us to hold that testamentary instruments can be revoked by implication.

THE facts are stated fully in the judgment of Lascelles C.J., as follows: -

" This is an appeal from a decree of the District Judge of Kurunegala admitting to probate a codicil to the will of Mellowa Arachchige Carolis Perera Appuhamy of Katuwellagama.

" The deceased executed a will on November 20, 1906, and on November 22 of the same year a codicil, in which he varied the terms of the will by increasing the share of the sons. Both the will and the codicil were prepared and attested by the Dunagaha Notary (Seneviratne), whose warrant to practise as a notary has since been cancelled.. The testator died on September 8, 1910, but neither will nor codicil was found amongst his papers. On October 10 Julis, the executor of the will, applied for probate, stating in his petition that the testator had left the will and codicil with Dunagaha Notary, who refused to deliver them to him. The notary, when examined on November 13, stated that after executing the will and codicil, the testator had left them in his office for about a month, and that the testator had consulted him about revoking the will, and that he had advised the testator either to tear up the will or to write another one.

" On February 28, 1911, when the case came on for inquiry, the applicant produced the original codicil, stating that he had received it from the notary on payment of Rs. 250. The learned District Judge disbelieves this, but I must confess that I regard the conduct of the notary with the greatest suspicion.

" The respondents produced evidence that the testator formally tore up the will in the presence of his daughters and others. But the learned District Judge rejects this evidence, which is almost certainly false."

On the evidence the learned District Judge (Bertram Hill, Esq.) held: -

I find on the evidence that the will was in the possession of the testator, and that it was not forthcoming at his death. The presumption is that he destroyed it. I think it is very probable that the deceased did wish to revoke both the will and the codicil, but by mistake or ignorance only destroyed one of these documents. If the will had been in existence, it seems to me very probable that it would have been found as the codicil was found.

I find them on the issue that the last will was revoked, but the codicil was not revoked.

I see no reason why the codicil should not be admitted to probate. It is an independent document, and its provisions can be carried out apart from those of the will. I make order accordingly, and order letters of administration with the codicil annexed to issue to the. applicant, the eldest son of the deceased.

The second respondent appealed.

Elliott, for the appellant.-The District Judge holds that the will was destroyed animo revocandi. The codicil must, therefore, be held to have been revoked; it is a necessary consequence of the revocation of the will. Counsel cited Grimwood v. Cozens,1 In the Goods of Bleckley.2

H. A. Jayewardene (with him A. St. V. Jayewardene and Molamure) for the respondent.-A revocation of the will does not amount to revocation of the codicil. A codicil can only be revoked in the manner set out in section 5 of Ordinance No. 7 of 1840. Black v. Jobling,3 In the Goods of Savage,4 Gardiner v. Courthope,5

Elliott, in reply.

Cur. adv. vult.

October 6, 1911. Lascelles C.J.-

His Lordship set

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