Foster-Sutton, P. In this case the plaintiff claimed as executor under what he alleged was the last will, dated 20th April, 1944, of Thomas Eshun, who died on the 10th January, 1950, for probate of the will in solemn form of law, and for revocation of letters of administration of the personal estate of the deceased granted to J. Phillip Yankson, since deceased, and the defendant, on the 19th' May, 1950. The writ of summons was issued against the defendant as administratrix, she having entered a caveat against the granting of probate of the will in question.
The facts are fully set out in the: judgment appealed from, it is, therefore, sufficient to say that the learned trial Judge did not accept the evidence led by the plaintiff regarding the circumstances in which the will is alleged to have been discovered. As to this, he found that the evidence was untrue and that an attempt had been made deliberately to mislead the Court.
The plaintiff also failed to satisfy the trial Judge as to the authenticity of the signature of one of the attesting witnesses, Kodwo Nyame. Comparing the signature alleged to be his on the will, with his unquestioned signature on the conveyance, exhibit “D”, the doubts expressed by the learned trial Judge are not surprising.
The trial Judge also found that the probabilities are that the literacy of the deceased did not extend beyond the capacity to sign his name, and there was clearly evidence upon which he could properly come to that conclusion. In such circumstances Order 49, rule 29 of the Civil Procedure Rules enjoins the Court not to grant probate of a will unless it is satisfied, by proof or by what appears on the face of the will, that the will was read over to the deceased before its execution, or that he had at that time knowledge of its contents. No such proof was offered and there is nothing on the face of the will to indicate that this requirement was met.
Counsel for the appellant urged that the principle “Omnia praesumuntuf file esse acta “ should be applied in this case. If the only doubt about this will was the fact that there is no attestation clause, that submission would be entitled to some weight, but I am unable to agree that it would be right to extend the principle to cover a case such as this.
For the reasons I have given I am of the opinion that the judgment appealed from ought to be affirmed, and I would dismiss this appeal with costs fixed at£17 6s. 0d.
Coussey, J.A. I concur. Windsor-Aubrey, J. I concur.
Appeal dismissed.