Foster-Sutton, P. In this case the plaintiff claimed as executor of the last will, dated 20th November, 1944, of John Intsiful, who died on the 18th June, 1950, to have the will established. The writ of summons was issued against the defendant, one of the other executors appointed under the will, who had renounced and entered a caveat against the granting of probate of the will in question.
The testator gave his instructions regarding the preparation of the will in dispute, Exhibit Pl, sometime in 1941, and the document was typed in that year. After it had been typed it was handed to the testator who appears to have kept it in his custody up to the 20th of November, 1944, when he told James Amissah Hammond, a Methodist Minister, and Joseph Brookman Amissah Arthur; both of whom gave evidence at the hearing in the Court below, that he had made his will and asked them to witness his signature.
There was evidence that in November, 1944, the testator was in a feeble state of health and that his eyesight was poor. Both of the witnesses I have already referred to gave evidence that the Testator's hand had to be guided when he made his signature to the will.
The learned trial Judge, in effect, held that the testator was not competent on 20th November, 1944, owing to his feeble state of health and bad eyesight to make a will, and he accordingly held that John Intsiful died intestate, and gave judgment for the defendant.
It was argued on behalf of the appellant that the evidence clearly shows that the testator knew what he was doing when he executed the testamentary document in question and, in my opinion, the preponderance of evidence is in favour of that contention.
The testator gave detailed instructions for the preparation of Exhibit P1, he kept it in his possession for several years and eventually told two responsible*Page 346persons that he had made his will and wished them to witness his signature to it. After the will had been signed and witnessed he asked Mr. Hammond, the Methodist Minister, whose evidence I have already referred to, to deposit it in the Divisional Court, Cape Coast, which he did.
Another witness, Gaddiel Robert Acquaah, Chairman of the Methodist Church in the Gold Coast, gave evidence that in 1948 the deceased “was nearly blind but mentally alert”.
In my opinion the better view of the facts in this case is that the testator was fully aware of the contents of Exhibit P1 when he executed it on the 20th November, 1944, that he knew what he was doing and wished to make his last will and testament. To hold otherwise would defeat the testator's wishes which he has clearly expressed and wished to be carried out.
It follows, therefore, that in my opinion this appeal should be allowed and that there should be a declaration that the will in question is a valid one. In the circumstances I think the costs should be paid out of the testator's estate.
Appeal allowed.