Appeal Court. 10 October 1934. Appeal from judgment of the Supreme Court or Sierra Leone

. Lost Will-Proof by parol evidence must leave Court without reasonable doubt of existence of will and intention of Testator.

The facts of the case are sufficiently set out in the judgment.

E. A. C. Davies for the Appellant.

C. E. Wriqht for the Respondents.

'l'he following judgment was delivered:­BUTLER-LLOYD, .J.

Matthew John died on the 10th May, 1918.

He left a widow who died in 1925, but no children. Apart from the widow his next of kin were two nieces, the present defendant-respondents. The first respondent had two sons, James Carew who dies in 1928, and the present plaintiff-appellant. Matthew John died possessed of property at No. 10 Mountain Cut, Freetown. No Letters of Administration in respect of his estate were granted. On 2nd .January, 1933, the plaintiff took out a writ claiming to be the sole devisee of the property under a will alleged to have been ma!!e by deceased in 1!) 17. subject to prior life interests to the widow and James Carew. Defendant entered an appearance to the writ, but merely insisted on plaintiff proving the alleged will in solemn form.

On the case coming up for hearing evidence was called on behalf of the plaintiff, an(1 after hearing argument the learned trial Judge gave judgment on the 13th November, 1933, dismissing the action; and it is from this judgment that the present appeal is taken.

The evidence called for the plaintiff was that of himself and R. C. P. Barlatt, alleged to have been named as executor, together with one Fergusson, now deceased, in the will propounded. A note of evidence given by first defendant on an inquiry held in May, 1933, and certain letters written. by her were also put in.

Plaintiff's evidence was to the effect that he saw the draft of a will which was prepared in Mr. S. J. S. Barlatt's office, and that he handed it to decease!! but did not know whether it was ever executed.

The alleged executor, Barlatt, gave evidence that the will was given to him in 1919 by the widow, that he saw and recognised testator's signature, that there were signatures of two witnesses whose names he could not recollect, and that he read the will, and that the contents were as propounded by plaintiff, and finally that he handed the will to first defendant in 1927, since when he had. not seen it..

On this evidence the learned trial Judge came to the conclusion that the plaintiff had failed to establish the will to his satisfaction and dismissed the action.

The proof of a lost will is always a difficult matter, and the difficulty is considerably increased where no draft or cops is available. In Woodward v. Goulstone 11 App. Cases at p. 475 Lord Herschell said:-

" Now I cannot but be alive to the extreme danger of establishing a will merely by parol evidence of its contents. The legislature has endeavoured to safe­guard the interests and rights of testators by requiring that the expression of their testamentary intentions shall be authenticated in such a manner as to leave no doubt, if possible, that the Court has before it that which really expresses the will and intention of the testator. It is not enough that it is in his own handwriting; it must, even if in his own handwriting, be authenticated by witnesses who must be present and see the testator sign, and must sign, in each other's presence ..... I think, therefore, that in order to support a will propounl1ed, when it is proved by parol evidence on, that evidence ought to be of extreme cogency, and such as to satisfy one beyond all reasonable doubt that there is really before one substantially . the testa­mentary intentions of the testator."

In the present case the direct evidence as to the due execution of the will, and as to its contents, is limited to the evidence of one witness who first saw it in 1!J]!J and had not seen it since 1927, and whose memory of the contents is so incomplete that he cannot even recall the names of the attesting witnesses. It is impossible also not to discount his evidence to some extent on account of his failure in his obvious duty to obtain probate of the will, which he says was in his possession for eight years. It is true that the fact that the names of the attesting witnesses are unknown is not an insuperable difficulty as is shown by Phibbs case, 86 L.J. p. 82. Nor did Mr. Justice Low, who tried that case, consider that the absence of assent on the part of those entitled on an intestacy would be a fatal obstacle where the contents of the will and its due execution were satisfactorily proved. The present case differ however toto caelo from Phibb's case, in that in that case there was reliable evidence that there was a proper attestation clause duly signed by the witnesses, and further that a letter written by the testator to his executor confirming the contents of the will wa5 before the Court.

I am satisfied that the learned trial Judge was right in coming to the conclusion that the evidence adduced before him in this case was insufficient to establish the will propounded to his satisfaction and that the appeal ought to be dismissed.

DEANE, C.J., GOLD COAST.

I concur.

WEBBER, C.J., SIERRA LEONE.

I concur