In the matter of Antonio Natalicchio, Prob. And Admin. Cause 64-D-65, 9/4/69 Hamlyn J.

 

In the matter of Antonio Natalicchio, Prob. And Admin. Cause 64-D-65, 9/4/69 Hamlyn J.

“The testator, Antonio Natalicchio of Morogoro, died in that town on 26^th July, 1965 having some five years before his death executed two wills. He adopted this mode of disposing of his estate as he had, at the time that the wills were drawn, two separate bank accounts, one being in the Standard Bank, Dar es Salaam and the other in Barclay’s Bank, Dar es Salaam. Each will dealt with a separate account and save for this and for a divergence which appears later, the two wills were identical; both were executed on the same date and disposed of his property in such accounts in the same manner. Subsequent to the execution of he wills and at some time during the five years thereafter which preceded his death, the testator opened a further account, a savings-account in the Standard Bank, Morogoro, which now has a credit balance of Shs. 593/75. On 17^th July, 1964, he also made a payment to the same bank as a fixed deposit account, which presently has a sum of Shs. 9,000/- as a credit to the estate. Neither of these two latter accounts is mentioned in the two wills. The dare s Salaam account in the standard Bank was subsequently closed by the testator, who deposited the proceeds in a current account in the same bank; this he drew upon during his life-time until the credit was exhausted and the account was finally closed. The Barclay’s Bank account was also closed by the testator, who transferred all the monies there in to the Standard Bank current account, but thereafter placed the money so transferred on fixed deposit in the same bank. At the date of his death therefore, the testator had in his name the two Morogoro accounts and also the Standard Bank, Dar es Salaam fixed –deposit account. The learned Administrator General, who seeks the directions of his court in this matter, has drawn my attention to one matter which raises a difficulty in respect of the deposit account in the Standard bank, Dar es Salaam. The two wills of the deceased, as I have noted earlier, are not completely identical …. The Barclay’s Bank will (if I may thus speak of it) deals with “all money, interest and property now held by me on Barclay’s Bank, Dar es Salaam and all money, interest and property that shall be my due in the future in the aforesaid bank”. …. The Standard Bank will (to use a similar convenient phrase) specified “all money, interest and property now held by me in the standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid bank. That is, the testator has seen fit to deal with all future “money, interest and property”  in Barclay’s Bank, Dar es Salaam, while in the case of the Standard Bank, Dar es Salaam he has referred only to future interest. As a result of the testator’s financial transactions prior to his death, the dare s Salaam Barclay’s Bank account has ceased to exist and the Administrator General now seeks directions as to the monies lying in the two Standard Bank Morogoro accounts and also the principal money on fixed deposit in the Standard Bank, Dar es Salaam; interest in respect of the letter account is already the subject of the Standard Bank will”.

Held: (1) “Now in so far as the Morogoro monies are concerned, both wills are entirely silent, for these accounts were brought into existence after the two wills were executed. Section 24 of the English Wills Act, 1837 reads: “Every will shall be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will”. I do not think that any doubt can exist but that the English Act applies in matters of this sort and Section 2(2) of the Judicature and application of Laws Ordinance, 1961 appears to govern the matter. It is clear that when the wills speak of money, interest and property in the two Dar es Salaam Banks, those expressions cannot have reference to the Morogoro accounts. It is immaterial that, at the date of the execution of the wills, there was money deposited to which the expressions would have reference. It is also immaterial that the testator before his death may have transferred monies from one of the Dar es Salaam accounts to Morogoro. Re. Gillins: Inglis v. Gilins (1909) 1 Ch. 345 makes it clear that interpretation of the wills must be as at the date of the death of the testator and not otherwise. And as Wood V.C., in Goodlad v. Burnett 6 (I.K. & K. 341) observed, “Testator must be taken to know the wills Act.” The wills are not sufficient to pass the new thin which the testator acquired and there is ad emption – Lane: Loard v. Lane (1880) 14 Ch. D. 856. The test is as to whether the property at the date of the death is “substantially the some thing “ as that spoken of in the will. I do not think that by any stretch of imagination could monies lying in the Dar es Salaam Bank be retrograded as substantially the some as other monies lying in the Morogoro Bank. While a bequest of money is ordinarily a general legacy, it may be specific and the fact that in the instant case the particular accounts were referred as being liable for the payments would appear to render the legacies specific ones. There are, it is true, conflicting decisions on this class of gift, but he circumstances and wording of the two wills do not enable me to hold that the testator, having made clear general gifts, merely pointed out particular funds which would be primarily liable, on failure of which the general personal estate would remain liable. I consequently find that the Morogoro account cannot be utilized as a source of payment of the Dar es Salaam bequests”.

            (2) “In so far as the Standard Bank deposit account is concerned, the will concerned bequeaths future interest only and not future principal. The testator in that document spoke of “all money, interest and property now held by me in the Standard Bank, Dar es Salaam and all interest that shall be my due in the future in the aforesaid Bank”. While the introduction of the word “now” into a testamentary document has never been construed so as to produce an intestacy, the circumstances of the present case are somewhat different from the run of English decisions, for the testator here uses the word in respect of property which has wholly ceased to exist and was subsequently replaced by other property from a different source, while the future property concerns interest only. The bequest as to the principal amount fails under the will and any interest that may have accrued in the Dar es Salaam Standard Bank savings account will pass under the legacy in the Standard Bank will.”