1919.    Present: Ennis A.C.J, and Loos A.J.

CROOS v. CROOS et al.

 46-D. C. Negombo, 1,701.

Last will-Unsound mini-Undue influence.

To impeach a will on the ground of undue influence, it must be proved . that the influence exercised amounted to coercion, i.e., compelled the testator to do something he did not want to do.

THE facts appear from the judgment.

A. St. V. Jayawardene   (with   him. Mutunayagam, Weerasinghe, and Hayley), for appellant.

Bawa, K.C. (with him Drieberg and Zoysa), for respondents.

Cur. adv. vult.

 209

October 28, 1919.  Ennis A.C.J.-

This   appeal  is  from   a  refusal   of  the   learned  District   Judge,        Croos v. Negombo, to grant probate of a will dated September 27, 1913, of         Croos the  late  Gabriel   Stephen  Rodrigo  of  Negombo,   which  was  pro­pounded by the appellant; and allowance of a grant of probate of a will dated June 2, 1913.

At the hearing the third respondent opposed the grant to the appellant on the ground that the September will was a forgery, and the eighth to the sixteenth respondents contended that the testator had destroyed the September will animo revocandi; they further con­tended that both wills were made by the testator while of unsound mind, and that the June will was made under the undue influence of Mr. G. M. de Croos, the September will under the undue influence of Mr. N. E. de Croos, the present appellant.

The learned Judge found that both wills were executed by the testator; that the testator made the June will while " of sound disposing mind, memory, and understanding," and that the Septem­ber will was made while he was not of sound disposing mind, memory, and understanding; that Mr. G. M. de Croos did not exercise any undue influence, and that Mr. N. E. de Croos did; and that the September will was not destroyed by the testator, but was probably stolen.

On the appeal appearance was entered for the third respondent; there was no appearance for the other respondents.

For the appellant it was contended that the testator was "of sound disposing mind " at the time of executing the September will, and that the appellant had not exercised undue influence to cause the testator to execute it.

These are purely questions of fact, and the learned Judge has given reasons at length for his findings. I do not, however, find myself in accord with the reasons upon which the findings on these points are based. It is agreed that the testator was a lunatic at the time of his death. The point of time when he became of unsound mind is the question in the case, and the learned Judge appears to have been greatly influenced in coming to a decision on this point by the terms of the September will. Mr. Arthur de Silva, who drew up the June will, and of whom the learned Judge says, " there is no doubt whatever that what he says he honestly believes to be true, " has given evidence that he used to see the testator practically five days in the week from about 1910; that he, the witness, went to Kandy in April, 1914, and that before he went, the testator, although not quite well in health, was all right in mind, and that he saw the testator to ask him to ask his servants to look after his place. This is definite evidence from a trustworthy source that the testator was of sound mind in April, 1914. Not a single witness speaks of the testator as of unsound mind prior to that. He had had epileptic fits, but that was all.

The case is very different from that of Harwood v. Baker,1 [1 3 Moore P. C. Cases 282.   ] where within two hours of the  will being made  it was  found that  the testator was not in full possession of his faculties, and he died a few    hours later.    Between June  and  September,   1913   (viz.,  in July), Mr. G. M. de Croos, who has been the friend and confidant of the testator, died,  and Mr. N. E. de Croos (the appellant) appears to have taken his place as the confidant of the t