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H.F. Mahoney Vs. Mrs. Georgiana Dominick - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1927All333
AppellantH.F. Mahoney
RespondentMrs. Georgiana Dominick
Cases ReferredFrances v. Penerett
Excerpt:
- - that raises a strong presumption that the signatures were required by him for his own purpose......they might look at some parts of the contents. according to mr. ross this gentleman wanted them to sign as witnesses without knowing the contents of the document. he sayshe covered over the whole matter leaving open only the portion of the paper where the witnesses had to sign.2. mr. chiene has drawn our attention to more than one case in which the witness' recollection is vague or has died away, but where it is clear that the testator himself fully appreciated what was required, and it was shown that he knew all about the requirements it is a familiar principle that all things are presumed to have been rightly done unless there is a reasonable ground for doubting it. why should it be doubted merely because the witnesses have forgotten-woodhouse v. balfour [1888] 13 p.d. 2. in the case.....
Judgment:

1. We think this appeal ought to succeed. There is a little difficulty about the evidence of the attesting witnesses. Unfortunately one of them is dead, but it is not disputed that the document is all in one handwriting and that it purports to be in the handwriting of the deceased. It is not disputed that it was in his possession while he was alive, and that he came over from his bungalow and asked the two witnesses to sign it. That raises a strong presumption that the signatures were required by him for his own purpose. The document is short, pious and very carefully drawn up, obviously with an attestation clause, which had been supplied to him by a lawyer, or which he had found in a book of the kind which does provide such things for the general public. It is plain that it was something to which he attached importance, and something for which he required two witnesses. It appears from the evidence of the surviving witness that the two witnesses had been got together, or were in fact together, on the occasion, and that Mr. Mahoney took advantage of that circumstance for the express purpose of getting them to sign it. They did sign it as witnesses, and he had carefully Written in the clause: 'signed and acknowledged by the said John Frederick Mahoney in the presence of us.' Therefore everything points to Mr. Mahoney having taken special care to do everything according to the prescribed regulations. Eight years afterwards it appears that Mr. Ross had for gotten Whether the testator wrote his signature before bringing the document over. There is not the slightest ground for suggesting that Mr. Ross had become deliberately unfriendly, or was dishonest in his evidence. It looks as if he wished to be particularly honest and clear. He says: 'he did not want them to know its contents'. English people who make their own wills, and arrange their own witnesses are notoriously mysterious on the subject. They frequently cover over the document and object to anybody seeing it, and is a very common thing for English witnesses to be diffident about looking at it. They will sometimes avoid looking at the signature for the simple reason that they might look at some parts of the contents. According to Mr. Ross this gentleman wanted them to sign as witnesses without knowing the contents of the document. He says

he covered over the whole matter leaving open only the portion of the paper where the witnesses had to sign.

2. Mr. Chiene has drawn our attention to more than one case in which the witness' recollection is vague or has died away, but where it is clear that the testator himself fully appreciated what was required, and it was shown that he knew all about the requirements it is a familiar principle that all things are presumed to have been rightly done unless there is a reasonable ground for doubting it. Why should it be doubted merely because the witnesses have forgotten-Woodhouse v. Balfour [1888] 13 P.D. 2. In the case of Frances v. Penerett [1902] P.D. 205 the principle of assuming everything to have been rightly done was again acted upon where it appeared that the testatrix's name and the name of the two witnesses were put on the document at the same time. In this particular case there is a circumstance much stronger than any which existed in either of the two authorities relied upon by Mr. Chiene and which has been overlooked by the Judge. Mr. Ross when he was cross-examined stated: 'the will was folded into four folds and I was asked to sign at the bottom.' The document is now before us in folds. Mr. Ross did not sign at the bottom because Mr. Gregory signed underneath, but if he folded the document in four folds and it does not appear to have been folded in any other way-the only thing at the top is the signature of the testator, his description and the date. We think it must be presumed as a matter of fact that the signature and the description and date were already there. Mr. Boss emphasizes this by saying that the deceased man covered over the whole matter leaving open the portion of the paper where the witnesses had to sign. That is the same portion as the portion on which the testator's signature appears.

3. We, therefore, allow the appeal and declare that the will was duly executed and must be admitted to probate. Both parties must have their costs out of the estate. The stay order is discharged.


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