ELIZABETH ANNA VANQULIN Vs. OFFICIAL TRUSTEE OF BENGAL

JUDGEMENT

(1.) In this case it, appears that the testator's will was admitted to probate on 23 January 1930, he having died on 29 November 1929. It further appears that, prior to the will in question, a previous will had been executed by the testator and had been deposited with the Registrar of Assurances in Calcutta with a view to Section 118, Succession Act, there being certain substantial legacies to charity contained therein. In like manner, the will which was admitted to probate was deposited with the Registrar of Assurances and it appears that, at the time it was made and deposited, the previous will was withdrawn from the custody of the Registrar. It further appears that the previous will was destroyed by the testator. In the later will, there is an express clause revoking all former testamentary instruments. Some of the legacies other than legacies to charity are different if one compares the two wills.

(2.) We find, for example, in the second will, that certain legacies remain unaltered and certain legacies have been increased. As regards charitable legacies, certain of them have been reduced and certain of them remain unaltered. The testator, according to the case of the applicants before the learned Judge, had not made his will in such a way as to comply with the provisions of Section 118, Succession Act, that is to say, the will at the time of his death had not been executed for a period of 12 months. In that view, the applicants took out an originating summons and they made as a party the executor, namely the Official Trustee, and they asked the Court's opinion whether the bequests to charitable uses were bad and whether the bequest of the residue to charitable uses was bad and void. On that, it appears that the Official Trustee appeared before the Court and, although the Probate Court has granted probate of the last will only as being the true testamentary disposition of the testator, it is sought upon this originating summons to make a case to the effect that, as the dispositions to religious and charitable objects in the second will were bad under Section 118, Succession Act, the revocation of the earlier will was dependent conditional revocation and therefore either that the charitable bequests in the former will must take effect or else that the whole of the: former will must take effect. I have not been able to ascertain exactly what the contention was.

(3.) The learned Judge on this originating summons entered into the question whether this will, which had been admitted to probate, was the man's will or not, or whether it, together with something else was the man's will, and he came to the conclusion that the will which had been revoked was revoked only by a dependent conditional revocation and he applied the consequences of that finding to the circumstances of the case. So far as I can make out, he took the view that it did not very much matter whether the second will was hit by Section 118, Succession Act, or not, because he said that the charitable bequests in it did not revoke pro tanto the charitable bequests made in the first document but, so far as they decreased the gifts to charity made in the first document, they did not offend against Section 118.