Banerjee, J.@mdashThis is an application on behalf of one Marjorie Patricia Walsh, who before her marriage was a Surita, for probate of the last will of her deceased husband; alternatively, for letters of administration to his estate.
2. The deceased was a Christian and had his domicile in England. He died on October 4, 1947, at a, Nursing Home in Suburban Hospital Road, Calcutta. He made his will on or about March 13, 1942 and was married to the Petitioner in June 1943.
3. It is alleged in the petition that the will was executed in contemplation of the marriage.
4. The properties left by the deceased are all moveable properties. The law applicable, therefore, is the law of domicile.
5. Section 18 of the English Wills Act, 1837, provides as follows:
Every will made by a man or woman shall be revoked by his or her marriage (except a will ma-de in exercise of a power of appointment, when the real or personal estate thereby appointed would not in default of such appointment pass to his or her heir, customary heir, executor or administrator, or the person entitled to his or her next-of-kin, under the statute of distributions.
6. In 1925, the Law of Property Act was passed in England. Section 177 of the Act reads as follows:
A will expressed to be made in contemplation of a marriage shall, notwithstanding anything m Section 18 of the Wills Act, 1837, or any other statutory provision or rule of law to the contrary, not be revoked by the solemnisation of the marriage contemplated. This section only applies to wills made after the commencement of this Act.
7. The question is whether this will has been saved by Section 177. The question is, Is the will expressed to be made in contemplation of marriage?
8. Mr. Meyer, appearing for the Petitioner has referred me to two English decisions--Pilot v. Gainfort (1931) P. 103 and Sallis v. Jones (1936) P. 43.
9. The question raised in Pilot v. Gainfort (supra) was as to the construction of Section 177. The facts in that case were these: The Plaintiff who propounded the will claimed to be the widow of the testator and universal legatee under the will in question. The Defendants who were next-of-kin of the testator did not appear. In 1914 or thereabouts the testator married a woman, who left him in 1921 and had not since been heard of and the testator had been unable to trace her. In 1924, he met the Plaintiff and lived with her. On February 12, 1927, he executed the will in question, the material portion of which was as follows:
I herewith bequeath and leave to Diana Featherstone Pilot my wife all my worldly goods.
10. On August 15, 1928, seven years having, elapsed since the disappearance of the woman whom the testator had first married, the testator married the Plaintiff.
The President said:
At a time when this marriage was obviously within the contemplation of "she testator, if he could validly contract it, he wrote out this holograph document, "the material part of which is a bequest to the Plaintiff, whom he described as hw "wife, of all that he had. According to the former law" (meaning the Wills Act of 1837) "the document would now have been ineffective, but the testator mast "be taken to have had knowledge of the Act of 1925, which prescribes that the "solemnization of his marriage shall not revoke his will made in contemplation of "that marriage. Under the circumstances I do not think it can be doubted that "the will was in contemplation of the subsequent marriage and practically expresses "that contemplation and ii good."
11. The words in italics are mine. The learned President held that the will was "expressed to be made in contemplation of a "marriage" because there were in the will the words "My wife", to whom all the worldly goods of the testator were bequeathed.
12. In Salis v. Jones (supra) it has been held that Section 177 of the Law of Property Act, 1925, does not prevent Section 18 of the Wills Act, 1837, from operating in revoke a will made before marriage, unless there is found in the will something more than a declaration relating to or a reference to marriage generally.
13. I, with respect, adopt the law as has been stated in the two cases.
14. In the case before me, in the will itself there is no reference to any marriage. There is no word suggesting that the testator was going to be married to the Petitioner. The will does not suggest anything of the kind. I am unable to hold, that this will fulfils the condition in Section 177, which saves it from the mischief of Section 18 of the Wills Act.
15. So I cannot grant a probate.
16. By the Administration of Estates Act, 1925, upon the death intestate of any person after December 31, 1925, the whole estate both real and personal, is administered as a whole. That Act provides that where the intestate leaves a husband or wife, irrespective of whether there be issue or not, the surviving husband or wife takes all personal chattels and a sum of �1000 absolutely free of death duties and costs and with interest at 5 per cent, per annum from the date of the death till payment or appropriation (Halsbury, Second Ed., Vol. 10, Articles 832 and 833).
17. In this case the total value of the assets is Rs. 26,409-11-3 pies as appears from the affidavit of assets which has been affirmed by the Petitioner. The deceased died without any issue.
18. This matter first came up for hearing before Majumdar J. On a note submitted to him by the Insolvency Registrar, his Lordship directed citation to issue to that next-of-kin of the deceased to show cause why probate of the will should not -be granted to the Petitioner. Next-of-kin were served by notice sent by registered post under order of the Court. The receipts have been placed before me. I am satisfied of proper service.
19. It appears that no next-of-kin has any objection to probate of the will being granted to the Petitioner. It follows, therefore, that they do not object to any other kind of representation being granted to her.
20. That she is entitled to letters of administration cannot be doubted. The only question is what security she should be directed to furnish.
21. The Petitioner is about 30 years of age. Her life interest, therefore, on a reasonable calculation, covers the estate.
22. She gets practically the whole of what has been left by the testator. None of the next-of-kin has appeared or objects to her application.
23. In the circumstances, I direct the Petitioner to furnish security for rupees one thousand only.
24. Letters of administration to issue to the Petitioner on her furnishing security for rupees one thousand to the satisfaction of the Registrar.
25. The costs of this application be paid out of the assets. Certified for counsel.
