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Colonial Cases

Will of the late Mr. Galastaun


Will of the late Mr. Galastaun

Supreme Court of the Straits Settlements
(No date)
Source: Straits Law Reports (Stephen Leicester, 1877) 26



The proper execution of a codicil according to the Indian Wills Act on 1838 is sufficient to support the Will to which it refers. Although the Will be not properly executed, if the Will and codicil be written on the same paper, or ne annexed to each other, and the witnesses attesting the latter, - see both papers.

   This is an application for probate, against which certain relatives of the deceased have entered a caveat, the object of both parties being amicable, and to prevent future litigation by obtaining the opinion of the Court as to the validity or invalidity of a document purporting to be the last Will and testament of the deceased.

   The alleged Will, by which the testator, an Armenian merchant, disposes of the whole of his property in a manner therein mentioned, bears date at Penang the 31st Dec. 1839, is written in the Armenian language and purports to have been signed and sealed in the presence of three witnesses, Mr. Lewis, Mr. Palmer, and Mr. Norman W. McInyre, the testator signing his name both in Armenian and in English.  It appears, however, that although the testator acknowledged his signatures to each of these witnesses, and each attested the document in his presence, he did not sign or acknowledge his signatures in the presence of any two of them "at the same time," as required by the Indian Act XXV of 1838, Sec. 7, but to each separately and on three different occasions, the last witness signing nearly a year after the two former.  The last witness, Nr. McIntyre, did not subscribe until the 26th November 1840, when being at the house of the testator, the latter produced his Will, acknowledged his signatures thereto and asked Mr. McIntyre to attest it, which he accordingly sis, seeing that only two witnesses had signed and supposing three to be still necessary as before the Act.

   Another person, Mr. Gregory Zechariah, (since deceased) was also present and saw and heard all that passed.  The testator then expressed a wish to add a Codicil, which Mr. McIntyre at his request and by his dictation, write in English at the foot of the Will, on the same sheet and commencing in these words "Codicil to this my last Will and Testament," whereby, the testator makes a further bequest to certain of the legatees named in the Will.  This Codicil was executed in due form, as required by the Act, having been "signed by the testator in the presence of two witnesses present at the same time," viz., the  said Mr. McIntyre and Mr. Gregory Zechariah, both of whom "subscribed it in his presence."

   The question, then, for the decision of the Court is, whether, under all the circumstances, the Will is a valid Will within the meaning of the Indian Act; and the  question might be one of some nicety of it depended altogether on the decisions under the old law, which are very numerous and in  some respects not easily reconcilable.  But there is no occasion to enter into that wide field and examine the fine distinctions which have been drawn between original publications and republications, express or implied, or between Codicils and memoranda or sequels on incipient Wills.  The terms of the Act are happily too plain to render it necessary to search in that labyrinth of learning and ingenuity for a satisfactory answer to the present enquiry. 

   I may observe, however, that this case is very plainly distinguishable from those of Lea vs. Libb, 3 Mod 263; Bond vs. Seawell, 3 Burr. 1773; and Attorney General vs. Barnes, 2 Vern. 597; which have been cited in argument for the purpose of shewing that the attestation of a Codicil is not alone sufficient to support the Will to which it refers.  In Lea vs. Libb, the Will and codicil were written on different pieces of paper, neither the one nor the other has the requisite number of witnesses, as the law then stood, and of the two witnesses to the Codicil one had not seen the Will to which it referred.  In Bond vs. Seawall, also, the Will and codicil were on distinct papers and the special verdict left it doubtful whether the witnesses had seen all; and in Attorney General vs. Barnes, where the Will and Codicil were also distinct, as appears from the fuller report of that case by Lord Chief Baron Gilbert, it is clear that the witnesses to the Codicil had not seen the Will.  The case of Carleton vs. Griffin, 1 Burr. 548, has also been referred to as adverse to the validity of the present Will, because altho' the attestation of the subsequent writing there was held to be a sufficient attestation of the Will, it was expressly on the ground that the additional writing was part of one entire Will, and not a Codicil; which it is argued, was tantamount to a decision that the attestation of a Codicil being distinct from a Will is not sufficient attestation of the Will itself.

   But as the late Statue, on which the Indian Act is framed, has, in accordance with what had been laid down in Barnes vs. Crow, 12 Ves. Junr. 490; Brown vs. Shirer, 4 Bro. C.C. 60; Piggot vs. Walker 7 Ves. Jun. 98 and many other cases, declared that a Codicil is part of the Will, and making but one Testament, the argument  from Carleton vs. Griffin makes the other way; for the observations of Lord Mansfield in that case are strictly applicable to the present.

   "The testator," says he, "plainly considers the whole as one entire disposition - the signing of the former part does no harm; it makes it more solemn, but it does not hurt it.  He takes up the sheet of paper, and holding up the said sheet of paper says, 'It is my Will.' And certainly he did not mean a part of it only, but the whole of it. And he desires them to attest it."

   To the same effect are the observations of a very sound lawyer, Mr. Sergeant Hill, in his note on the case of Bond vs, Seawall, 3 Burr. 1775, "when the codicil," says he, "is at the time of the execution is the Codicil indorsed on or annexed to the Will, if the testator see the witnesses attest the execution of the Codicil they must necessarily see the Will, and therefore their attestation of the Codicil goes to the attestation of the Will, the Codicil, and the Will being but one Will; and consequently the testator's seeing the witnesses to the Codicil attest the execution, does in effect see them execute the whole Will as much as if the Will and Codicil had been all upon one paper;" and here they are both upon one paper.

   It is true, Mr. Roberts in his Treatise on Wills and codicil's, (3d Ed. par: 105,) lays it down "that if the Will were not executed and attested according to the statute, the Codicil could not help the defect, although it had the requisites of the statute; for what was bad in its creation could not be made good by anything ex post facto." But this appears to be rather a refinement of the author's own than a fair deduction from decided cases, and it is not reconcilable with the above observations of Lord Mansfield and Sergeant Hall,

   The terms of the Act, however, by which the decision in this case must be chiefly governed, appear to remove all doubts, if any could remain, upon the subject.  "The general objects of the Act are, "as Sir Edward Ryan has observed, "to remove danger and error and litigation, arising from Wills made by persons unaccustomed to legal forms and to lay down rules so plain and simple that they may be easily understood.  It gives the most comprehensive meaning to the  word "Will" extending it to a Testament, a Codicil, an appointment, &c., and to any other Testamentary disposition," and declared that "any Will executed in the manner therein required, shall be valid without any other publication thereof."

   Now altho'' up to the 26th Nov. 18490, the date of the codicil, the Will was certainly invalid as not having been executed according to the Act; yet the due and regular execution of the Codicil as, both in law and by the testator's express declaration "a part of that his last Will and Testament" was in my opinion, a virtual execution of the entire Will, within the terms of the 17th Section of the Act.  This section, after enacting "that no obliteration, interlineations, or other alteration made in any Will, after the execution thereof, shall be  valid or have any effect, ... unless such alteration shall be executed in like manner" &c. expressly adds, - "bit the Will, with such alteration as part thereof shall be deemed to be duly executed, if the signature of the testator under the subscription of the wintriness's be made in the margin or some other part of the Will, opposite or near to such alteration or" (ass is the case here) "at the foot or end of or opposite or near to such alteration" &c.

   Now that a Codicil may be termed an "alteration" of the Will is plain from the definition of Swinburn and Godolphin who describe a Codicil as "an addition made by the testator, and annexed to and to be taken as part of a testament," and there the actual alteration consists in the subsequent bequest to one legatee of certain property which would have otherwise gone to several in the proportions mentioned in the Will.  But should this be thought too great a refinement on words, and  doubts be entertained whether a Codicil can be regarded as one of the kind of alterations contemplated by the 17th Section, I am of opinion  that the mere fact of the testator's having acknowledged his signature to the Will in the presence and hearing of "two  witnesses present at the same time" -0 viz., Mr. McIntyre and Mr. Zechariah followed by "their subscription" of the Codicil "in his presence," such Codicil being on the  same sheet with, and an indisputable part of the Will, was a valid execution of the entire Will within the meaning of the seventh section of the Act.

   The Will therefore is pronounced to be valid, and probate will be grated accordingly.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School