YANKAH AND OTHERS v. ADMINISTRATOR-GENERAL AND ANOTHER [1971] 2 GLR 186

DIVISION: IN THE COURT OF APPEAL

DATE: 12 JULY 1971

BEFORE: APALOO J.S.C., JIAGGE AND SOWAH JJ.A.

CASES REFERRED TO

(1) Lloyd v. Roberts (1858) 12 Moore 158; 14 E.R. 871.

(2) Wright v. Sanderson (1884) 9 P.D. 149; 50 L.T. 769; 48 J.P. 180; 32 W.R. 560, C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Charles Crabbe J. (as he then was) unreported; digested in (1970) C.C. 116, wherein he dismissed an action by the appellants to revoke a codicil to a will executed by the testator. The facts are fully set out in the judgment of Apaloo J.S. C.

COUNSEL

P. A. Adjetey for the appellants.

J. B. Quashie-Idun for the respondents.

[p.188] of [1971] 2 GLR 186

JUDGEMENT OF APALOO J.S.C.

Apaloo J. S.C. delivered the judgement of the court. This appeal is from the judgment of Charles Crabbe J. (as he then was) in which he declined to revoke the codicil of the late J. T. N. Yankah who died at Accra on 7 September 1964.

The testator was a schoolmaster of acknowledged eminence. Some years before his death, he took ill and was in and out of hospital by turns. The medical evidence shows that he was suffering from a blood disease known as leukaemia. It would seem that the testator had a premonition of his approaching end. He accordingly decided to dispose of his property by will. Being a scholar and a man of the world, he was not unknowledgeable about how to do this. He himself put his wishes in writing and requested Mr. Caseley-Hayford to put it in legal language.

The latter is a relation of his by marriage being a first cousin to Mrs. Yankah. The evidence also shows that Mr. Caseley-Hayford was on terms of great intimacy with the testator and his wife. He and Mr. Yankah called each other by the amiable pet name “Cos.” Mr. Caseley-Hayford duly put the testator’s written wishes in legal form and this will was executed on 28 January 1963 (exhibit A). There is no dispute of any sort about the will.

Judging by the dispositions in that will, the late Mr. Yankah could not be said to be possessed of considerable fortune, but he was far from being a poor man. He had two, two-storeyed houses and a piece of land at Accra. It seems that he acquired these by his own exertions. He also inherited his mother’s house at Cape Coast. He left a modest sum of money at the bank. The evidence shows that the testator had by his wife seven boys and an only daughter. All these survived him as well as his wife who died just about two-and-half months after the testator. Mr. Yankah was also survived by a brother, a cousin and probably a few remote relatives. Of the two houses owned by the testator, he devised the newer one to his wife for life and thereafter jointly to all his grandchildren by her. He devised his other house to his brother for life and after his death to his only daughter and her children. He devised the vacant land to his daughter. The only bequest Mr. Yankah left in his will which benefits his male children were, to quote the will, “clothes, my few books, my illuminated addresses and copies of memoranda and articles I published in the press.” This gift was made jointly to all his children and this will include his only daughter. The testator appears to have had a special fondness for his daughter Hagar and showed a definite inclination to confer on her benefits over, and above all his male children. Being the only daughter of the marriage, it is perhaps not unnatural that she should be the main object of her father’s bounty.

On 6 September 1964, Mr. Yankah executed a codicil to the will. As he did before, he again wrote his wishes in his own hand and handed them to Mr. Caseley-Hayford. Most of the writing is barely legible and it is obvious that he was nearing his end. The circumstances in which he actually executed his codicil is the subject of debate but to this we will return later.

In that codicil, the testator altered the disposition which he [p.189] of [1971] 2 GLR 186 made in his original will in respect of the new two-storeyed house. Instead of the gift over after his wife’s death to all his grandchildren, he now directed that on the demise of his wife, that house should devolve on his daughter Hagar and her children exclusively. Instead of this, he made specific pecuniary bequests to five of his male children. The effect of the codicil, is that the interest which the children of the testator’s male children had in this house was extinguished. That appears to be the reason why four of the male children of Mr. Yankah instituted the proceedings which culminated in this appeal. It is plain that they were desirous of invalidating the codicil.

On 11 January 1965, the sole executor named in the will propounded the said will before the High Court, Accra, and sought probate. It is clear he gave no notice of this application to any of the appellants. The application was ex parte and must have been supported by affidavit. But for a reason which is not quite clear, Mr. Caseley-Hayford went into the witness box and explained the reason for what appears to be a cancellation on the face of the codicil. The learned judge feeling satisfied, granted probate of the will and codicil.

The appellants sought to question the validity of this codicil by these proceedings in which, in their capacity as next-friends of their infant children, they claimed to have the codicil established in solemn form. This relief was sought against the executor and the person directly affected by the failure of the codicil, namely, Hagar Nana Yankah. The executor took marginal interest in this action and filed a defence in which he denied that any legal relief can properly be sought against him and prayed that the action be dismissed as frivolous. As is only to be expected, this action was really fought by Hagar who was sued as the second defendant. It was pleaded on her behalf that the action was unnecessary inasmuch as the will and codicil “have already received the sentence of the court pronouncing for its force and validity.” The appellants denied in their reply that this was conclusive of the matter. Despite her original stand in the matter, the second respondent agreed to the two issues formulated by the appellants in the summons for directions as follows:

“(1) That the court should make an order directing the defendants to establish in solemn form the codicil dated 6 September 1964 alleged to have been made by the late J. T. N. Yankah.

(2) That the court should order that if the defendants should fail to establish the said codicil in solemn form, the probate of the said will . . . should be revoked and the said codicil cancelled or alternatively declared null and void.”

In view of the agreed issues, the respondents undertook the initial onus of establishing the codicil per testes. To do this, they put in the witness-box Mr. Caseley-Hayford and one of the attesting witnesses, namely, Mary Adams. The appellants met their evidence by the testimony of two of their number and also Dr. Hawe, the physician specialist, who

[p.190] of [1971] 2 GLR 186 attended the testator in the last days of his life. The appellants sought to invalidate the codicil on the main ground that the testator was delirious and was not in a fit physical state to execute the codicil. The learned trial judge concluded the case against the appellants and declined to revoke the probate not because he was satisfied that the respondents established the codicil in solemn form but on the purely procedural ground that “once probate has been granted, the grant is conclusive as regards the true intent and will of the testator.” The judge also thought that what took place before the court on 11 January 1965, was not proof in common form. The action, he said, “went beyond the requirements of proof in common form.” Accordingly, he held that the proper remedy open to the appellants was to sue to have the probate set aside. As they had not done this, the action failed.

It is entirely in character that Mr. Adjetey who appeared for the appellants in the court below should seek to question this conclusion by this appeal. On the purely procedural basis of the judgment, counsel contests it on two grounds. These are so apt that they represent the whole kernel of the complaint. We quote them verbatim as follows:

“(1) The learned trial judge erred in law in holding that the grant of probate made to the first respondent by the High Court, Accra, on 11 January 1965 was not a grant in common form.

(2) The learned trial judge erred in law and misdirected himself when he held that the respondents could not be called upon to establish the codicil alleged to have been executed by the late J. T. N. Yankah in solemn form merely on the ground that a grant of probate had already been made of that codicil by the High Court, Accra.”

As distinguished from proof in solemn form, what does proof in common form mean? According to Tristram and Coote’s Probate Practice (20th ed.) at p. 542:

“A will is proved in ‘common form’ where its validity is not contested or questioned. The executor, or the person entitled to administer with the will annexed, brings the will into the principal registry or district registry, and obtains the grant notwithstanding the absence of other parties interested, upon his own oath and any further affidavits which may be required.”

With respect, that is what the Administrator-General qua executor did before the High Court on 11 January 1965. Clearly no notice was given to the appellants whose children’s interests were destroyed by the council. The fact that Mr. Casely-Hayford appeared and explained away a cancellation which appeared on the face of the codicil, does not affect the matter. Although the learned judge said that what took place went beyond the requirements of proof in common form, he shrank from saying that it amounted to proof in solemn form. But according to Tristram and Coote (ibid):

[p.191] of [1971] 2 GLR 186

“A will is proved in ‘solemn form’ by the executor, or a person interested under the will, propounding it in an action to which the persons prejudiced by it have been made parties, and by the court, upon hearing evidence, pronouncing for the validity of the will.”

That clearly was not done in the 1965 proceedings but was sought to be done by the instant action. In our opinion, the learned judge erred in thinking that the 1965 proceedings were other than proof in common form. We think the judge again fell foul of the law when he held that once probate was obtained, the present proceedings were legally incompetent. At page 252 of Probate Practice by Macdonell and Sheard (1953 ed.), the correct legal position is tersely stated as follows: “An executor who has proved a will in common form may be compelled afterwards to prove it in solemn form, at the instance of any person interested. If the proof in solemn form fails, the probate will be revoked.”

The learned authors of Tristram and Coote expressed the same view of the law. It is precisely this relief that the appellants sought by this action and these were the agreed issues on which the learned judge’s decision was sought. In our opinion, the basis of the judge’s decision was wrong in law. Although Mr. Quashie-Idun pleaded that this action did not lie because the “will and codicil have already received the sentence of the court pronouncing for its force and validity,” he seems to have revised his view of the law. Before us, he readily conceded to Mr. Adjetey the two grounds of appeal and did not seek to support the basis of the court’s conclusion. He, however, argued that on the agreed issues, the respondents undertook to establish the will in solemn form. He contends that they have done this and that the judge should have pronounced for the will in that form. He invited us to correct the judge’s error and pronounce for the will in solemn form. For an authority to do this, he points to the Supreme Court Rules, 1962 (L.I. 218), r. 32. Mr. Adjetey did not question our authority to do this and indeed seems to have foreseen that this view of the matter may well be taken by the court. But he meets it in advance by his third ground of appeal which reads:

“Having regard to the evidence of the witness, Mary Adams, to the effect that she was not present when the late J. T. N. Yankah is alleged to have completed the execution of the codicil, the learned judge erred in law in not holding that the said codicil was not executed in accordance with the requirements of the law and therefore void and of no effect.”

Naturally enough, it is Mary Adams’ evidence that Mr. Adjetey stressed especially that part in which she is recorded to have said: “After he had tried to sign, I left the ward for another patient.” This sentence divorced from the rest of the evidence and the circumstances of this case, does lend some plausibility to the argument pressed on us by Mr. Adjetey that Mary Adams did not sign in the presence of the testator and that she herself was not present when the testator signed the codicil. But the [p.192] of [1971] 2 GLR 186 very careful evidence of Mr. Caseley-Hayford, the real evidence provided on the face of the codicil itself and the probabilities of the case, tell strongly against that interpretation of the evidence. The testator himself, though not a lawyer, knew what a will and codicil were. He himself told Mr. Caseley-Hayford that he wanted to make a codicil to this will. And he wrote this out himself. He cannot have been unaware that a codicil must be attested in like manner as a will. The will which he executed a year back was attested by two witnesses in his presence. Whatever his knowledge, Mr. Caseley-Hayford advised that two witnesses should be present and attest his signature in his presence. It is the testator himself who, acting on that advice, sent for his co-patient Hayfron and the duty nurse Mary Adams. The codicil bears the signatures of these two witnesses and further states that they subscribed the codicil in the presence of the testator and in the presence of each other. It is difficult to think that Mr. Caseley-Hayford who dealt with this matter with such commendable despatch and was anxious that the testator’s wishes be not frustrated, would have permitted Mary Adams to leave without signing the codicil in the testator’s presence. The appellants who were desirous of invalidating the codicil, although closely questioning Mary Adams on other matters, did not direct any question to her to determine when she signed the codicil nor attempt to suggest to her that she did not sign it in the manner recorded in the attestation clause. In all the circumstances of this case, a fair conclusion to reach on the evidence, is that after the testator made the apology of a signature which appears on the face of the codicil, both Hayfron and Mary Adams signed the codicil in the testator’s presence and in the presence of each other. We think that it was after this that Mary Adams left. It seems Mr. Caseley-Hayford who was not particularly happy with the hieroglyph which the testator made as his signature and fearful that it may be questioned, again took the testator’s thumb-print on the document and both he and Hayfron attested this in the testator’s presence. We think the taking of the thumb-print was unnecessary and was done ex abundanti cautela. In those circumstances, we must hold that the codicil was executed and attested according to law. The view of the fact which commends itself to us is strengthened by such principles of law as govern this matter. In the old English case of Lloyd v. Roberts (1858) 14 E.R. 871, the headnote reads, “If a will appears on the face of it to have been properly executed according to the requirements of the Will Act, 1 Vict., c. 26, the presumption of law is, that the Testator duly acknowledged it.” In that case, the will was in the handwriting of the testator with an attestation clause in its proper place and was attested by two witnesses. The will was opposed on the ground that it was written after the witnesses attested the will. One of the attesting witnesses was dead. The other deposed that when he signed the will with the exception of the testator’s signature and of the other attesting witness, the paper was blank. Nevertheless, the Court of Appeal affirmed the decision of the Arches Court of Canterbury which pronounced for the will on the ground that judging from the appearance of the will as well as [p.193] of [1971] 2 GLR 186 the circumstance that the testator was a professional man well acquainted with the necessity of a proper execution and the presumption of law that the will was written when attested and had been acknowledged in the witnesses’ presence, the surviving witness must have been mistaken or may have been of faulty memory.

The principle of this decision was followed by the English Court of Appeal in the later case of Wright v. Sanderson (1884) 9 P.D. 149, C.A. In that case, the testator who was a man of business but not a lawyer wrote a holograph codicil upon the same paper as a will which he made ten years previously and wrote at the end of it an attestation clause adapting that at the end of the will to the case of the codicil. He called his nurse and nursing-governess “to sign the paper.” Both witnesses signed. At the trial which took place between four and five years afterwards, the codicil was produced bearing the testator’s signature and both the attesting witnesses were examined. Neither of them could say anything as to what writing was on the paper nor as to whether the testator’s signature was there when they signed. Both said positively that they did not see him sign.

The President of the Probate Court, however, pronounced for the validity of the will. The Court of Appeal affirming the Court of Probate, held that as the codicil ex facie appeared to be properly executed, the presumption omnia rite esse acta was strengthened by the conduct of the testator which showed an anxious and intelligent desire to do everything regularly, that the presumption was not rebutted by the evidence of the witnesses whose recollection of what took place was evidently imperfect. The instant case seems a much stronger one than the two cases cited above. Here, there was the positive evidence of Mr. Caseley-Hayford which it is impossible to distrust. And that evidence shows that the codicil was signed and attested by the witnesses in the testator’s presence. There is also the evidentia rei provided by the attestation clause and the circumstance that both the testator and Mr. Caseley-Hayford showed an anxious desire to comply with the requirements of the law. There is the added fact that Mary Adams on whose evidence the appellants relied, did not say that she signed the codicil in the testator’s absence. Even if she had said so, the presumption of regularity and the other credible evidence in this case would have availed against his recollection. We think therefore we must pronounce for this codicil in solemn form.

Mr. Adjetey also argued the general ground that the judgment was erroneous and cannot be supported in law. On this ground, counsel made a miscellany of what seems to us insubstantial complaints. It is said that Mr. Caseley-Hayford’s memory cannot be trusted, first, because he had not mentioned in the 1965 proceedings that he took the testator’s thumb-print, but he said so in the instant action. It is also said that he had sworn positively that the codicil was executed in the morning and only changed this when it was pointed out to him that he himself recorded the time of execution at 6.35 p.m.

[p.194] of [1971] 2 GLR 186

We cannot hold that any or all of these matters stand as obstacles to Mr. Caseley-Hayford’s veracity. The 1965 action was a summary procedure in which the matter was not examined in any detail. If he had been asked about the thumb-print which was apparent on the face of the codicil, we cannot doubt that he would have given the explanation which he proffered in the instant proceedings. It is true that Mr. Caseley-Hayford at first thought that the codicil was executed in the morning. He put this forward as his recollection. But he corrected this when the time he himself put down was brought to his notice. This time tallies with Mary Adams’ evidence. In the circumstances, we regard this as an honest error of recollection on Mr. Caseley-Hayford’s part.

Mr. Adjetey next says the testator cannot have been in full possession of his senses when he executed the codicil because not only did he misdescribe his own house, but mixed up the names of his own children. For instance, it is said he described his “Nyamitiase Lodge” as “Yamitiase House” and misnamed his son Ernest Hayford Topp Yankah alias Ebo as Eboe Holdbrook Topp Yankah. The only difference between the words “Nyamitiase” and “Yamitiase” is that in the latter, the “N” is omitted. This may well be due to

Mr. Caseley-Hayford’s difficulty in deciphering the testator’s handwriting. But the house in question is sufficiently designated and there can be no doubt as to what house was intended to be devised. No point of substance can be made of the fact that the premises was called “House” instead of “Lodge.” As to the mixing up of the names, this may well be due to the testator’s defective memory when his end was near. But there seems to be no doubt whom the testator meant. Whatever the errors, the rule of law on which a Court of Probate acts in these matters is that mere misdescription does not invalidate a gift or put in the language of the classical Roman lawyer: false demonstratio non nocet.

Having disposed of all the matters urged against the validity of the codicil, we conceive it our plain duty to pronounce for it in solemn form and we hereby do so. In the circumstances, the question of revoking probate does not arise. While we differ from the ground on which the learned judge based his decision, yet inasmuch as he declined to revoke the probate of the codicil, we will not disturb his conclusion. Accordingly, this appeal fails and is dismissed with costs.

DECISION

Appeal dismissed with costs