Charles Arnold White, Kt. C.J.
1. The Chief Justice: This is an appeal ftom the decree of the District Judge of Chingleput refusing to grant probate of a will. The will is propounded by the three executors, two of whom are the brothers-in-law of the deceased, having married his two sisters. One of the brothers-in-law, Ramanjulu, joined with the other executors in applying for probate of the will in the Court below, but he has not appsaled against tb.3 decree refusing probate. Probate is opposed by the widow of th? deceased and by two illegitimate sons of the deceased. The deceased left him surviving his widow, the daughter of one Subba Naidu, a retired postmaster in Madras, a sister who married Ramanjulu, one of the executors who has a son, Appavu and another sister who married another of the executors, Ramaswami Naidu and he has no family. The will bears date June 17th, 1907, but the case for the plaintiffs is that it was not executed until June, the 18th. The deceased died on June, the 19th. He had been suffering from some urinary complaint for some years prior to his death and his last illness began about the 6th June 1907. The case for the plaintiffs who propounded the will is that he was of sound disposing mind on June the 18th, when the will is said to have been executed and that even in the view he was not of sound disposing mind on that date, he was capable of making a will on June the 14th, that he on that date gave instructions for the preparation of a will and that the document which was put before him on June the 18th embodies those instructions and that the deceased understood this. It is the plaintiffs' case that the will was brought into existence as a result of a considerable amount of persuasion brought to bear upon the deceased by some of his friends at the instance of the deceased's father-in-law, Subba Naidu. The deceased had made a will, which had been registered in March 1905. By that will he devised lands in a certain village to his sister, the wife of Ramaswami Naidu, with reversion to Appavu, the son of his other sister. He left the rest of his property to Appavu Naidu subject to the payment of Rs. 40 a month to his widow. He cancelled certain debts owing to him including a debt due by a dancing girl. According to the plaintiffs' case Subba Naidu, the 1st defendant's father, was dissatisfied with this will and in April 1907 asked some of the deceased's friends to try and persuade the deceased to make a fresh will more favourable to his widow. The deceased declined to do this. It is the plaintiffs' case that daring the last illness of the deceased these efforts were renewed and successfully. Under the will of which probate is now sought the widow gets a house %n Tirumangalam and a village. The sister Ramaswami Naidu's wife, gets considerable landed property and Rs. 10,000 in cash with reversion to Appavu who is residuary devisee and legatee. The provision cancelling the debt due from the dancing girl is not reproduced.
2. Now, there can be no question that the will which has been propounded by the executors was the outcome of the suggestions made by certain of the witnesses called in support of the will at the instance of Subba Naidu and in the interest of the widow. The case for the defence is that the will was really brought into existence at the instance of Ramaswami Naidu and in the interest of himself and his wife and this is the view which is taken by th3 District Judge. These baing the circumstances in which the will is made, it is necessary to examine very carefully the evidence which has been adduced in support of the will and unless we are satisfied that the will was, in fact, the will of the deceased, made by him as a free agent, notwithstanding that it was the outcome of suggestions made to him during his last illness by parties purporting to act in the interests of his widow, it cannot of course be admitted to probate. It is not suggested that the will was procured by undue influence, but it is clear that the will cannot be described as a spontaneous act of the deceased.
3. So far as the medical evidence goes the evidence if true is sufficient to establish that the deceased was of a sound disposing mind when he gave his instructions on the 14th of June and that he understood what he was doing when he accepted the document which put-ported to embody these instructions on the 18th of June. He was attended in his last illness by the Hospital Assistant and by Dr. Phillips an L.R.C.P. and L.R.C.S. of Edinburgh, who was summoned from Madras and who saw him on the 14th and on the 18th June. The Hospital Assistant speaking of the deceased's condition on the 18th stated that he was quite conscious and sensible when he signed the will and that he was then sitting in his chair, that he was able to give instruction to his clerk and was talking to his friends, that his condition was the same on the 14th, that his mind was clear and that he was able to speak to his friends and some business people between the 14th and 18th of June. Dr. Phillips deposed that he visited the deceased on the 14th of June and found him suffering from extravasation of urine, that he suggested an operation that the deceased had first consented but afterwards changed his mind that he then left after having been there about half an hour, that he saw him again in the early morning of June 18th and found him worse, that he had fever and his pulse was quicker and he was altogether in a worse condition than when he left him on the 14th, that he spoks to the deceased but he did not reply, that he thought the -deceased was not pleased with his presence and that was why he did not speak because he spoke to the Hospital Assistant. In cross-examination hi stated that on the 18th of June he thought the deceased made himself intelligible when he spoke to the Hospital Assistant, that he thought the deceased perfectly understood what the Hospital Assistant said, that he did not think the deceased was unconscious but that he was conscious, that if he had been treated by the witness he might have lived, that he was asked by the Hospital Assistant if it was safe to remove the patient to his village and that the witness told the Hospital Assistant that it was not safe to remove him at that stage. Curiously enough neither the Hospital Assistant who was called by the plaintiffs to support the will nor Dr. Phillips who was called for the defence was asked directly whether in his opinion the deceased was capable of making a will on June the 14th or on June the 18th. The District Judge came to the conclusion that the deceased was not of sound disposing mind 'in spite of the evidence of Dr. Phillips and the Hospital Assistant.' The Judge states that Dr. Phillips 'did not give evidence in a straightforward manner and apparently came prepared to speak against the defence;' and as regards the Hospital Assistant he observes that he was examined on commission and that the note of the District Munsiff who examined him shows that he displayed great bias on behalf of the plaintiffs and that his demeanour in the witness box was unsatisfactory. So far as the recorded evidence goes, there does not seem anything to warrant the criticism that Dr. Phillips did not give evidence in a straightforward manner. He answered the questions directly and it was not his fault that he was not asked, as he ought to have been asked, whether in his opinion the deceased was of sound disposing mind. The District Judge bases his opinion that the deceased was not of sound disposing mind on the 18th to some extent on the appearance of the so-called signatures which appear at the foot of each sheet of the will. There can be no question that although the signature on the first sheet possibly bears some remote resemblance to the signature of the deceased, the other signatures are rightly described by the District Judge as mere scribbles. The District Judge also finds that as regards some of the attesting witnesses they did not sign the alleged will on the 18th. From what I have said it is clear that this case is not free from difficulty. Although I r m reluctant in a case of this sort to disturb the finding of a Judge who has had the advantage of seeing the witnesses and observing their demeanour, I have come to the conclusion that the evidence adduced in support of the Will is in the main true and that the deceased, even assuming that he was not capable of making a Will on June the 18th, was capable of understanding on that day that the document put before him embodied instructions previously given by him. As regards the law in this matter it was thus laid down by Sir James Hannen in Parker v. Felgate 8 P.D. 171. 'If a person has given instructions to a solicitor to make a Will and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good Will, if executed by the testator, is that he should be able to think thus far, ' I gave my solicitor instructions to prepare a will making a certain disposition of my property; I have no doubt that he has given effect to my intention and I accept the document which is put before me as carrying it out.' 'The law as thus laid down by Sir James Hannen was cited with approval and acted on by the Privy Council in Perera v. Perera (1901) A.C. 354.
4. His Lordship after discussing the evidence said:--' I have come to the conclusion that the evidence is sufficient to establish that instructions for the making of the Will were given by the deceased on the 14th when he was of sound disposing mind, that these instructions were embodied in the document which was put before him on the 18th and that on the 18th he was capable of understanding that that, document embodied the directions which he had previously given.'
5. The appeal must be allowed and the will admitted to probate.
6. The plaintiffs may take their cost out of the estate. The defendants will pay their own costs here and in the Court below. Sadasiva Aiyar J. agreed with his Lordship the Chief Justice in'a separate judgment dealing with the evidence in the case. Ed.
1. (1901) A.C. 354.