Wakilii

In Re - The will of Harry Edward Waits - and In Re - Mrs. Violet Odell, a Legatee Ex Parte - Arthur William Thompson and Others, as Trustees (Civil Suit No. 1006 of 1952 (O.S.))

East African Court of Appeal · [1955] EACA 236 · 1955 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Originating summons by trustees for construction of will to determine whether two legacies to same beneficiary were accumulative or substitutional
Decision
Declaration granted that only one legacy of £1,000 payable to Mrs. Violet Odell

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Indian Succession Act 1865 is a code exhaustive on matters of testamentary succession and excludes English common law and statute law. Section 62 permits extrinsic collateral evidence to identify persons denoted by words in a will, but not to prove testator's intention. Section 88 mandatorily provides that where a will purports to make two bequests of the same amount to the same person with nothing in the will showing contrary intention, only one legacy is payable. Extrinsic evidence of intention is inadmissible to rebut this rule. The will created only one legacy of £1,000 to Mrs. Violet Odell.

Outcome

Declaration granted that only one legacy of £1,000 payable to Mrs. Violet Odell

Facts

Harry Edward Waits made a will dated 20 October 1949 bequeathing £1,000 to his three nieces Leila, Violet and Doris, daughters of his deceased sister Elizabeth Howes. Later in the same will he bequeathed £1,000 to Mrs. Violet Odell, daughter of the late Mrs. Elizabeth Howes. The trustees paid one legacy of £1,000 but doubt arose whether Mrs. Violet Odell was entitled to a second legacy. By affidavit it was established that 'Violet' and 'Mrs. Violet Odell' were one and the same person. The trustees applied by originating summons for a declaration whether the will created one or two legacies to Mrs. Odell.

Issues

  1. Whether the Indian Succession Act, 1865, as applied to Kenya, excludes the application of English common law and statute law on matters of testamentary succession.
  2. Whether extrinsic collateral evidence is admissible under section 62 of the Indian Succession Act to identify a beneficiary named in two different ways in the same will.
  3. Whether extrinsic evidence of the testator's intention is admissible under section 88 of the Indian Succession Act to prove that two legacies to the same person are accumulative rather than substitutional.
  4. Whether a will bequeathing £1,000 to 'Violet' and £1,000 to 'Mrs. Violet Odell' (the same person) creates one or two legacies.

Orders

  • The will is to be construed as bequeathing one legacy only to Mrs. Violet Odell.
  • The trustees should abstain from paying to Mrs. Violet Odell any legacy of £1,000, save one.
  • Question of costs reserved for further argument.

Rules and key headnotes

Testamentary Succession — Codification — Indian Succession Act as Exhaustive Code
The Indian Succession Act 1865, as applied to Kenya by the East Africa Order in Council 1897 and saved by the Kenya Order in Council 1921, is a codification of the law of succession intended to exclude all authority of English common or statute law on topics contained in the Act. The essence of a code is to be exhaustive on matters in respect of which it declares the law and it is not in the province of the court to go outside the letter of the enactment according to its true construction.
Extrinsic Evidence — Identification of Beneficiaries — Section 62 Indian Succession Act
Section 62 of the Indian Succession Act permits a court to enquire into every material fact relating to persons who claim to be interested under a will for the purpose of determining what person is denoted by words used in the will. This extrinsic collateral evidence does not approach the question of intention but explains the words by removing the cause of their apparent ambiguity. It places the court in the situation of the testator and the words of the will are left to their natural operation.
Extrinsic Evidence — Testator's Intention — Inadmissibility under Section 62
Section 62 of the Indian Succession Act has nothing to do with whether legacies are accumulative or substitutional. An intention cannot be read into section 62 to admit parol or other evidence of the testator's intention to prove a double legacy to a beneficiary accumulative. The section admits evidence exclusively for the purpose of determining what person or property is denoted by words used in a will.
Double Legacies — Section 88 Indian Succession Act — Mandatory Rule of Construction
Section 88 of the Indian Succession Act provides a mandatory rule of construction, not a rebuttable presumption. Where one and the same will purports to make in two places a bequest to the same person of the same quantity or amount, and there is nothing in the will to show contrary intention, the beneficiary is entitled to one legacy only. The word 'presumption' nowhere enters the rule and no extrinsic evidence of intention is admissible to rebut it.
Double Legacies — Distinction from English Law — No Rebuttable Presumption
The English rule admitting extrinsic evidence in cases of double legacies depends upon a presumption raised by the court that the testator did not intend two legacies, which presumption being rebuttable, extrinsic evidence is admissible to rebut it. Under the Indian Succession Act no presumption is raised by the court or by the Act itself. There is only a mandatory rule of construction which must be applied in any event and no rebutting extrinsic evidence of intention is admissible.
Double Legacies — Descriptive Words — Not Evidence of Motive
Where a will makes two gifts to the same person using different descriptions (such as 'my niece Violet' and 'Mrs. Violet Odell'), the descriptive words are not an expression of motive. No motive may be inferred merely from describing one gift by maiden name and another by married name. These are merely descriptive words and do not show an intention to make accumulative gifts.
Illustrations to Statutes — Legal Effect — Not Absolutely Binding
An illustration to a statutory provision does not in legal strictness form part of the Act and is not absolutely binding on courts. It merely goes to show the intention of the framers of the Act and in that respect may be useful provided it is correct. It is a mistake to look at the illustration more than at the words of the Act, for it is only intended to assist in construing the language of the Act.

Legislation cited (9)

  • Indian Succession Act, 1865 s.62
  • Indian Succession Act, 1865 s.88
  • Indian Succession Act, 1865 s.100
  • Indian Evidence Act, 1872 s.100
  • East Africa Order in Council, 1897 Art.11(b)
  • Kenya Order in Council, 1921 Art.11
  • Kenya Order in Council, 1921 Art.29
  • Kenya Order in Council, 1921 Art.4(2)
  • Colonial Laws Validity Act, 1865

Cases cited (16)

  • Hooley v Hatton (1774) 1 Dick 349
  • Hurst v Beach (1820) 56 ER 929
  • The Queen v Marais, ex parte Marais [1902] AC 51 (PC)
  • Gokul Mandar v Pudmanud Singh (1902) ILR 29 Cal 707 (PC)
  • Duchess of Kingston's Case (1776) 2 Smith's LC (11th edn) 713
  • Hukum Chand Boid v Kamalanand Singh (1906) ILR 33 Cal 931
  • Norendra Nath Sircar v Kamal Basini Dasi (1896) ILR 23 Cal 563 (PC)
  • Lala Suraj Prosad v Golab Chand ILR 28 Cal 517
  • Gureebullah Sirkar v Mohunlall Shaha (1881) ILR 7 Cal 127
  • Boyes v Cook (1880) 14 Ch D 53 (CA)
  • Sooreejmoney v Denobundoo 6 Moo IA 526
  • Doe d Hiscocks v Hiscocks (1839) 5 M & W 364
  • Roch v Callen (1847) 6 Hare 534
  • Suisse v Lord Lowther (1843) 2 Hare 424
  • Khoylash Chunder Ghose v Sonatung Chung Baroo ILR 7 Cal 132
  • Amrita Bin Bapuji v Naru bin Gopal Shamji (1881) ILR 13 Bom 491

Full judgment

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In Re - The will of Harry Edward Waits - and In Re - Mrs. Violet Odell, a Legatee Ex Parte - Arthur William Thompson and Others, as Trustees (Civil Suit No. 1006 of 1952 (O.S.)) [1955] EACA 236 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.