Ex parte Ford and Langham: In re Estate Boediker

• Jurisdiction: South Africa
• Judge: Selke J
• Judgment Date: 02 April 1953
• Citation: 1953 (4) SA 338 (N)
• Court: Natal Provincial Division

Selke, J.:

This was the return day of a rule nisi granted by this Court on the 11th November last calling upon all persons concerned to show cause against an order -

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(a)

declaring that the late Georgia Anna Boediker (alias Gale). died intestate;

(b)

declaring that Edward Gilbert Ford and Herbert Cecil Langham are and have been duly confirmed as executors dative of the estate of the said late Georgia Anna Boediker (alias Gale);

(c)

A that any acts done by the said Ford and Langham in their aforesaid capacity are confirmed; and

(d)

that the costs of the applicants, and of the curator ad litem, are to be paid as between attorney and client by the said estate.

B The order also gave directions regarding the services to be made on certain indicated individuals and upon St. Mary's Hospital, Mariannhill, Natal; and directed the publication of the rule twice in the Union Government Gazette and in a daily newspaper circulating in C Durban. In addition, it granted to any person desiring to intervene in the proceedings leave to do so, and it made provision for the hearing of oral evidence on the return day. Lastly, it appointed Samuel Tauber Pretorius to be curator ad litem to represent possible, but unknown, intestate heirs of the said late Georgia Anna Boediker (alias Gale).

D On the return day, Mr. Fannin appeared with Mr. Harcourt for the applicants; Mr. Caney with Mr. Bizzell for St. Mary's Hospital; Mr. Kuper with Mr. Laurence for Mrs. Shkudsky (formerly Phyllis Pelunis), and Mr. Hathorn with Mr. Burne for the four individuals named in para. 2 E of the order of the 11th November, all of whom reside in the United States of America and are intestate heirs of the deceased. Mr. Pretorius appeared as curator ad litem in terms of the Court's order.

The services and advertisements authorised or directed by the order were F proved, or accepted on behalf of everyone represented before the Court as having been complied with. The Court then heard oral evidence concerning the making and execution of the original will of the 23rd September, 1940, exhibit 1, and the coming into existence of the two documents, exhibits 6 and 7, which contain, in type-script, the text of G the original will and also the names of the testatrix and of the witnesses to the will, and bear, in addition, the actual signature of the testatrix and the actual signatures of two witnesses, one of whom, however, is not a witness to the original will. There was also oral evidence of the circumstances in which the late Miss Gale gave instructions to Mr. Ford regarding the preparation of a will shortly H before her death, and tore up the original will exhibit 1. There is thus before the Court a good deal of information, contained in affidavits and in oral testimony. None of this information is challenged, and all of it seems to me to be reliable so far as it goes.

The salient facts appear to be that in September, 1940, whilst the War was still on, Miss Gale, who was then residing in a house she owned at Manors near Durban, and was conducting a business

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at Durban called 'Arts and Crafts', employed Mr. E. R. Browne (who was then her solicitor), to draw a will for her. Mr. Browne drew the will, and, on the 23rd September, 1940, Miss Gale executed it in Mr. Browne's A office. That document, torn into several pieces, was exhibit 1 in this case. It bears to be witnessed by 'T. Mildred' and 'S. Whittaker', who were, at that time, clerks in Mr. Browne's office. Miss T. Mildred (who is now Mrs. Hall), and Miss Whittaker both gave oral evidence, as well B as evidence on affidavit, in the case. Neither of them was able materially to add to the information which Mr. Browne furnished about the execution of the document of the 23rd September, 1940, but Mr. Browne was able to throw some light on the circumstances in which exhibits 6 and 7 came into existence, for he said that, when Miss Gale called to sign her will, she expressed some apprehension lest the C building in which his offices were might be destroyed by enemy action, and she said that, for safety, she wished to have additional copies made of her will. Mr. Browne accordingly instructed Mrs. Cleland, (then Miss Wingett), to make two additional copies, Mr. Browne's recollection being that Miss Gale wanted one signed copy to be kept at D her bank and one signed copy to be kept in his, Mr. Browne's, strong room. Mr. Browne was not present when Miss Gale signed them, and neither Mrs. Cleland nor Mrs. Hall remembers anything about the incident, though they recognise their signatures. It seems that Mrs. Celand, who was Mr. E Browne's personal secretary and was responsible in the office for Mr. Browne's documents, filed away Miss Gale's will, exhibit 1, and the two documents, exhibits 6 and 7, in the strong room in an envelope which bore in Mrs. Cleland's handwriting the words:

F 'DUPLICATE ORIGINAL WILL OF MISS G. GALE. 64.A. ORIGINAL AND ONE COPY HANDED TO MISS GALE THIS 30th SEPTEMBER, 1940.'

The original envelope has been mislaid and was not available at the hearing, but secondary evidence regarding it was before the Court. There G is no reason to doubt that the 'original and one copy' were handed to Miss Gale on the 30th September, 1940, as the envelope records. These documents would appear to have remained with Miss Gale until they came into Mr. Ford's possession in November, 1950. It also appears that, in 1942, Miss Gale consulted Mr. Guy Goodricke, an attorney in Durban, in H connection with the making of a will, and that Mr. Goodricke drew up, pursuant to her instructions, the draft will which is exhibit 3. The provisions of this draft differ to a large extent from those of the will, exhibit 1. Then in November, 1950, Miss Gale suffered a stroke and, becoming seriously ill, was removed to St. Mary's Hospital, Mariannhill. At this time her solicitor was Mr. Ford, who is the first of the applicants in the present proceedings. Mr. Ford sought an interview with Miss Gale at St. Mary's Hospital, but, before he visited her, he consulted her medical attendant, Dr.

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Harris, about the advisability of discussing business affairs with her at that time, she being then confined to bed and partially paralysed as the result of a cerebral thrombosis. Having satisfied himself that Miss Gale was in a fit condition to discuss her business with him, Mr. Ford interviewed her at the Hospital about the 30th November. At that time A Miss Gale's power of speech, though still seriously affected, had greatly improved from what it had been earlier, and she asked Mr. Ford to go to her house at Manors, and to look in a writing desk in her study, in a place she described, for an envelope marked 'Wills', and having found it, to bring it to her. Mr. Ford's evidence is that he did B as she asked, and found the envelope precisely as and where Miss Gale had indicated. To that extent, therefore, there can be no doubt her mind was clear. Having brought the envelope, he resumed the interview with her in the Hospital, and in response to her request, extracted at C random from an envelope a document which turned out to be exhibit 1, and was in form an original will duly executed. He commenced to read this document to Miss Gale, but, before he had got very far, she interrupted him and said, 'No, that is not the one, that is an old one'. Mr. Ford then pointed out to her that, on the face of it, the document D appeared to be an original and a valid will, upon which she said 'destroy it'. Mr. Ford then handed the document to Miss Gale, who took it and endeavoured to tear it by resting her paralysed left arm upon a part of it and trying to tear the document with her right hand as it was E thus held; but, as she was obviously having difficulty, Mr. Ford placed the two torn pieces together and held one side while Miss Gale tore the document with her right hand. Mr. Ford then put the document thus torn up into his brief case with the envelope out of which it had come, after noticing that that envelope contained another document, which appeared F to him to be a carbon copy of the one torn up. Mr. Ford says that he then remarked upon the presence of this carbon copy, but Miss Gale made no response. The carbon document ultimately proved to be a document (exhibit 7), bearing the signature of...