LOUKA HJ. ANDONI PIERI ν. ELENI HJ. YANNI AND STAURACHI THEOCHARI (V2) 1 CLR 153

(1)that if it were necessary to prove consideration, it had been proved that the moneys secured by the bond had really been advanced by the plaintiff Hadji Yanni, or that if the Court were not satisfied of that, then that a consideration to support the bond would he found in the fact, that the deceased had been waited on and supported by the plaintiff and his wife during his last years,

(2)that although the Supreme Court had in the case of Theognosia Haralambo v. Evangheli Haralambo and others, (ubi sup. p. 21) decided that as between heirs, the consideration for a bond given by a deceased ancestor to one of them must he proved, the plaintiff in this case was not an heir, and, therefore, it was unnecessary that consideration should be proved. Article 1610 of the Mejelle was relied upon to show that it was not open to the defendants to require the plaintiff to prove consideration. For the respondent it was contended that as regards the question of whether the money had really been paid by the plaintiff to the deceased or not it was a question of fact decided by the District Court, with whose decision on such a point the Supreme Court would not interfere: that it had already been decided in the case of Dimitri Solomo v. Marikou Elia (not reported) that even as between strangers and heirs the latter could require consideration to be proved under Section 1589 of the Mejelle, and that in the case of Theognosia Haralmbo v. Evangheli Haralambo, bonds given without consideration and intended to take effect only after the death of the maker of them, were void altogether as intended to defeat the laws of inheritance. As neither of us had been members of the Court by which the case of Theognosia Haralambo v. Evangheli Haralambo (ubi sup. p. 21) had been decided, and as it did appear to us that there was a difficulty in reconciling Articles 1589 and 1610 of the Mejelle, we reserved judgment in order that we might have an opportunity of considering the decided cases and the law. With regard to the question of fact, we see no reason to disagree with the finding of the District Court that there is no satisfactory evidence to show that the moneys for which the bond purported to be given, had in fact ever been paid by the plaintiff to the deceased Hadji Yanni. With regard to the contention of Mr. Artemis, that if the payment of money by the plaintiff to the deceased was not established, a sufficient consideration for the bond would be found in the services rendered to the deceased by the plaintiff and his wife, it is sufficient to say that there was no evidence of them put before the Court. We also consider that, having regard to the fact that the moneys had not really been advanced by the plaintiff, and that although the bond was given in March, 1885, and Hadji Yanni did not die until the year 1891, no attempt appears to have been made to recover the moneys due under the bond, and to the fact that the bond was given to the husband of the daughter of the deceased, we are entitled to draw the inference that it was given with the intention that it should not be enforced until after Hadji. Yanni's death. The question for our decision, then, is, what is the legal effect of a bond, purporting to secure moneys, which have never as a matter of fact been paid, and which is not intended to be enforced until after the death of the maker; and to what extent has the law been settled by previous decisions of the Supreme Court? In the first place we are of opinion, that such. a bond as that sued upon in this action, is a written acknowledgment of debt, the law regulating which is that contained in book 13 of the Mejelle, headed "on acknowledgments." It appears to us that such a document is one that falls within the definition of "acknowledgment " contained in Article 1572 of the Mejelle, and it has been so held in both the cases referred to in the course of the argument in this appeal. The leading principle of the law no doubt is, that everyone is bound by his own acknowledgment; and where an acknowledgment has been made by a person of sound mind, who has attained the age of puberty, he is, as a general rule, bound by that acknowledgment. As an instance of the extent to which this doctrine appears to be carried, and to which the law will enforce acknowledgment, we will refer to the proceedings mentioned in Articles 1591 to

1. If a person says "All my goods which are in .my possession are the property of so and so," his declaration is considered to be a gift, and has no effect unless he makes delivery of the goods; but if he says "All the things which are considered to belong to me are the property of so and so," it i regarded not as a gift, but as a declaration of the right of another, which under Article 1594 can be enforced against him in his lifetime, and against his heirs after his death. This appears to carry the value of acknowledgments a very long way, though it seems from Article 1589 that the maker of the acknowledgment would be able to assert that his declaration was false, and the person in whose favour the declaration was made, would be put upon his oath that the declaration was true. Though Article 1589 does not in terms refer to the heirs of a deceased person it appears to us that probably it would be necessary to hold that they stand in the same position as their ancestor, and would also be entitled to the protection of Article
2. Articles 1595 to 1605 deal with acknowledgments made by a person during the course of his last illness. Article 1596 provides that a person having no heirs may make an acknowledgment in favour of another, and thus defeat entirely the right which the Beit el Mal would otherwise have had. It is possible that in this case no one could defeat the acknowledgment by saying that it is false. By Article 1601, if a person in the course of his last illness, acknowledge that certain property of his belongs to a stranger (i.e., a person who is not an heir), or that he owes him a sum of money, such an acknowledgment is valid, even though it comprehends the whole of his estate. But the article goes on to say that if many persons know that in reality the property mentioned in the declaration is the property of the person making the declaration, and it is manifest that the declaration was false, then the acknowledgment has either no effect at all, or may be good according to circumstances, as a gift or a legacy, as the case may be, and in either of the latter cases, is valid only up to one-third of the value of the estate. The Article does not in terms speak of the falsification of an acknowledgment of debt, though there appears to be no reason in principle, why, if the declaration of ownership of property can be shown to be false, a declaration of debt should not likewise be capable of being attacked on the same ground. If it can be so attacked, it appears to us that on the same principle as an acknowledgment of the right of property in another, may be regarded as a gift or legacy, as the case may be, the acknowledgment of debt may also according to the circumstances be considered as a gift or legacy of the moneys referred to in the declaration. By Article 1605, the contracts of guaranty defined in Article 1614 of the Mejelle, made by a person in the course of his last illness, are placed on the same footing as acknowledgments of debt. They are invalid if made in favour of an heir; but good if made in favour of a stranger, up to the value of: one-third of the estate. Our view of the law of acknowledgments in general, is, therefore, that a person making a declaration whilst sound in mind and body will as a general rule be bound by that acknowledgment; that he is nevertheless entitled to dispute the truth of his acknowledgment, and it seems to us that reason and justice require that his heirs should, with regard to this, be held to stand in the same position as he does. For instance a man might make such an acknowledgment as is referred to in Article 1591, to the effect that certain property considered to be his was the property of another, and subsequently meet with an accident and die. Had he lived, it appears to us that it would have been open to him to dispute the correctness of his acknowledgment, under Article 1589, and we see no reason in principle why his heirs, as representing him, should not be allowed to do, what he himself is allowed by law to do. If the acknowledgment be made by him during the course of his last illness, it may either be of no avail at all, or be valid as a gift or a legacy as the case may be; though in either of the latter cases, it can hold good only up to the value of one-third of his estate. Had the law on acknowledgments stopped here, it appears to us, that applying it to the present case, we should have held that it was open to the defendants to contest the acknowledgment of Hadji Yanni that he owed the plaintiff £20 for cash advanced. The acknowledgment was not made by Hadji Yanni, so far as the evidence goes, during the course of his last illness, and consequently is not governed by Section 1601 of the Mejelle, and could not under that section be regarded as part of his will. Is there then anything in the law which forms an exception to the general rule that a person may deny the truth of acknowledgments made by him? It appears to us that Article 1610 has made such an exception. This Article provides in effect that where a person has made a written acknowledgment of debt in an "official, or legal, or customary" form it is not open to him subsequently to deny the debt stated in the document, if he acknowledges that the signature to it is his, or if on his denial of his signature, its authenticity is established It is worthy of remark that the words "to his creditor" (τω δανειστή αυτού) which appear in the Greek translation of Article 1610 do not appear in the Turkish text, which says literally "the sened of debt" or obligation that he has given. If it is free from all suspicion of forgery or fraud, he is bound to pay the amount of the debt stated in it. We are informed that the undoubted meaning of the words which are translated, πλαστογραφία καί παραποίησις in the Greek, is some forgery or fraud in the document itself. No doubt other defences besides those specified in Article 1610 might be raised: for instance, that the making of the obligation had been extorted by force (see Article 1575); and though there is no mention of a fraud practised on the maker, apart from some fraud in the note itself, it is certain, that if the making of the obligation itself had been procured by some fraud practised on the maker, we should hold that the obligation could not be enforced against him. Article 1611 in like manner expressly provides that the heirs of a deceased person are bound to pay the debt when the signature or seal of their ancestor is acknowledged by them, or has been proved. It appears to us, therefore, that in these articles the law has made an exception to the general rule laid down in Article 1589, and. has provided that acknowledgments of debt, drawn up in "legal official or customary form," cannot subsequently be contradicted. It is not easy to see what class of documents the law contemplated in making this exception. The words we have translated "legal official or customary" first occur in Article 1609, which says with regard to acknowledgments drawn up in "official" or "legal" or customary form (for the Turkish word @@@ includes them all; and indeed the article itself goes on further to define the meaning of @@@ by expressly mentioning the word "customary" @@@) that they have the same force and effect as acknowledgments, would still appear to be subject to the provisions of Article 1589, and it would still be open to the person making such a document to deny the truth of, the acknowledgment, and to put upon the person in whose favour the acknowledgment is made the onus of proving its truth. But when in the next two sections the law goes on to say, that if the person making the acknowledgment, deny the debt mentioned in it, his denial shall not be taken into account, but that he and his heirs after him are to be adjudged to pay the debt, without any reference to any proof of consideration, such as is referred to in Article 1589, it does appear to us that the law has designedly made an exception in the case of acknowledgments made in this form. For some reason or other, whether from considerations of general policy, or others of which we are not aware, and concerning which the law itself gives no inkling, there appears to be a distinct enactment that where an acknowledgment of debt is drawn up in an official, or legal, or customary form the debt acknowledged cannot afterwards be disputed. It did occur to us that perhaps Article 1610 had reference only to bills of exchange or promissory notes, the forms of which are prescribed by the Commercial Code; but though it would undoubtedly include these, it appears to us to have also a wider signification, and to include all monetary obligations drawn up according to a usual or customary form. We see no reason in principle why in the case of negotiable instruments, as between the parties to the making of the note itself, want of consideration should not be allowed to be set up as a defence. However this may be, we hesitate to say that a document such as the one in question, which appears to us to be a written acknowledgment of debt, drawn up in a form which is well-nigh universal in this part of the Ottoman dominions at all events, and which is a simple engagement to pay a certain sum at the expiration of a certain time, is not such a document as is contemplated by Article 1610 of the Mejelle. So far as the law itself goes, therefore, it appears to us that it would not be open to the defendants to resist the plaintiff's claim, on the, ground that there was no proof of consideration ; and we turn to the decisions of the Supreme Court to which reference has been made. The first of these is the case of Dimitri Solomo v. Marikou Elia which was heard on appeal and decided by the Supreme Court the 30th December,
3. The facts in that case appear to have been, that the plaintiff was the adopted son of one Hadji Mariou Hadji Dimitri, who in the year 1884 made a bond in his favour for £210 ostensibly for money advanced. No time was specified in the document itself for the payment of the amount of the bond; but after the death of Hadji Mariou, the plaintiff sought to recover the amount from her heir. It was argued for the plaintiff before the Supreme Court, that the advance of money by him to the deceased was proved; and for the defendant that the Court below had found that the money had not been in fact advanced, that no consideration was proved, and that the document had been made to evade the law of inheritance. The Supreme Court affirming the judgment of the District Court, decided in favour of the defendant, as would appear from a very brief note made at the time, on the ground that it was open to the heirs of a deceased person, under the provisions of Article 1589, to require the person in whose favour an acknowledgment of debt was made, to prove the consideration given. It is to be observed, that in this case the attention of the Supreme Court does not appear to have been directed to the provisions of Articles 1610 and 1611, and if the document sued upon in that case, was an ordinary bond purporting to secure the payment of money, and drawn up in the form which is usual and customary here, it is difficult to see how the decision in that case can be reconciled with the law, or with the decision in the subsequent case of Theognosia Haralambo v. Evangheli Haralambo (ubi sup. p. 21). In the latter case, the facts, as stated in the judgment of the Supreme Court, appear to be, that a bond to secure the sum of £200 was given by one Hadji Despinou to the plaintiff, one of her heirs, some time prior to her death, which after her decease the plaintiff attempted to enforce against the other heirs. The attention of the Supreme Court was directly called to the provisions of Article 1610 of the Mejelle. The Court clearly felt the force of those provisions, and the view then taken appears to be irreconcilable with that taken in the case of Dimitri Solomo v. Marikou Elia assuming of course, as we feel was most probably the case, that the forms of acknowledgment in the two cases were similar. In giving judgment in Theognosia Haralambo v. Evangheli Haralambo the Court say .. "we are of opinion "that although regarded as a simple acknowledgment of debt "such a document a. that before us cannot be attacked, it was "nevertheless competent for any heir to attack it, on the "ground that it forms part of a transaction designed "merely to defeat the law of inheritance. That it is in "fact contrary to the policy of the law, and a fraud on "the heirs who do not purport to be benefited by it." We regard the opening words of this sentence to be a distinct decision that such acknowledgments of debt cannot be attacked under the provisions of Article 1589 of the Mejelle, and whilst this decision appears to us to be more in accordance with the law than was the decision in the case of Dimitri Solomo v. Marikou Elia, it also appears to us to conflict with the grounds on which apparently the decision in that case was based. We have, therefore, unfortunately two decisions of the Supreme Court before us, on the point as to whether the debt stated in such a document as is sued upon in the present action, can be attacked upon the ground that the consideration stated in it must be proved; and having bad the opportunity of closely considering the law on acknowledgments, we should unhesitatingly follow the decision in the case of Theognosia Haralambo v. Evangheli Haralambo as being, in our view, in more direct conformity with the law. It was unfortunate that in the previous case the provisions of Article 1610 were not directly called to the attention of the Court, or taken into consideration. The ground upon which the decision in the case of Theognosia Haralambo v. Evangheli Haralambo rests, is that a bond made by a person in favour of one of his heirs and not intended to be enforced until after the death of the maker, is a transaction intended to defeat the law of inheritance, and void on the ground of public policy: and we proceed to enquire whether the principle of this decision is applicable to the case before us. We will in the first place consider the law as to the disposal by .a person of his property. Our view of the law is that a man may, whilst in sound health, dispose of the whole of his estate either to an heir or a stranger. He may by will also dispose of his property to a stranger, but only to an extent not exceeding the value of one-third of the inheritance. A bequest to one heir is invalid altogether, unless the other heirs consent to it. The question then arises, as a man cannot by will dispose of property exceeding the value of one-third of his estate, is it open to him to do so by an instrument not purporting to be a will in form, such for example as a written acknowledgment of debt, but intended to operate only subsequently to his death? We have had some doubts as to how far an acknowledgement of debt, at all events, such an acknowledgment as is referred to in Article 1610, can, apart from the decision in the case of Theognosia Haralambo v. Evangheli Haralambo, be attacked subsequently to the death of the maker. Article 1610 no doubt says that the heirs are bound by it, and it is somewhat curious that Article 1601, which while dealing with two kinds of death-bed acknowledgments, viz. an acknowledgment of the ownership of property and an acknowledgment of debt, only mentions specifically a falsification of the acknowledgment of the ownership of property, and is silent as to a falsification of the acknowledgment of debt. As we have already said, we see no reason in principle, why, if one acknowledgment is capable of being falsified, the other should not also. The policy of the law appears to be to safeguard the interest of heirs, and to protect them against the gratuitous acts of their ancestors upon their death-bed, and against their bequests, beyond a third of the residue of their estates after payment of debts. Supposing a man upon his death-bed makes an acknowledgment of debt in the form, for instance, of such a bond as is sued upon in this action, promising to pay a sum of money say at the expiration of one year. It would be quite certain that the intention was, that the acknowledgment should take effect after his death. This debt would, we believe, under the law become exigible immediately upon his death, and if such an acknowledgment could be held good as a debt, the maker would be able to entirely defeat the rights of his heirs, as his whole estate might be swallowed up. We think that undoubtedly such a transaction, although in terms the acknowledgment was absolute, and did not on the face of it show that it was to take effect after death, must nevertheless be held to be a bequest, if surrounding circumstances showed that in fact it was intended to take effect after death. This being the case with regard to death-bed acknowledgments, are acknowledgments made in time of health, but intended to take effect only after the death of the maker, to stand on a different footing, and to be good for their whole amount against the estate of the maker after his death? In our opinion they must be held to have the same force and effect. To hold otherwise would be to render of no avail the law which now limits the powers of disposition by a person of his estate to take effect after his death. The broad principle ,of the law appears to be, that a person may whilst in health divest himself of his property to as great an extent as he pleases, but that any disposition intended to take effect after his death must be limited to the value of one-third of his estate. We, therefore, hold the legal effect of such a written acknowledgment of debt as the bond sued upon in this action, to be similar to a bequest. In the case of Theognosia Haralambo v. Evangheli Haralambo (ubi sup. p. 21) to which we have so frequently referred, it was abundantly plain that Hadji Mariou, by giving written acknowledgments of debt in favour of some of her heirs, to the exclusion of another, or others, was attempting to dispose of her property after her death in a way which we consider was not sanctioned by the law. The judgment of the Supreme Court no doubt says that such a bond is void as contrary to public policy; and although our decision in this case does not proceed on that ground, it is not contrary to the decision in that case, as the plaintiff in that action was an heir, and viewing the acknowledgment of debt made in his favour as having the same legal force and effect as a bequest would have had, it is plain that unless the other heirs assented to it, it would have no force and effect. From our point of view we should hesitate to say that such a bond is void from reasons of public policy; but we should prefer to say that it is void as being in the nature of a bequest to one heir, which would be invalid unless assented to by the other heirs. We think we are correct in viewing the judgment of the Court of Appeal in that action as founded upon the fact that it was a transaction to benefit one heir at the expense of the others. The judgment says "We are, however, so "strongly impressed with the fact that in cases such as "this, the whole transaction is intended to confer a benefit "which is not to take effect until the death of the person "conferring it, and whatever may be the apparent nature "of the document employed, or the meaning of the words " used in them, there can be no doubt whatever that the "whole and sole intention is to confer on one heir, to the "prejudice of others some greater right than the ordinary "law allows of." It appears to us from these words, that the Court had in view an acknowledgment of debt in favour of an heir only; and that it is with reference to the case actually before the Court, that the sentence in the judgment immediately following that we have quoted, declaring such acknowledgments to be void as contrary to public policy, is to be read. It is a matter of regret that the meaning of the Court was not more clearly defined, as undoubtedly the words "although regarded as a simple acknowledgment of debt such a document as that before us "cannot be attacked," would of themselves apply to any "acknowledgment, whether made in favour of an heir or a stranger. Having regard, however, to the words of the preceding sentence of the judgment, it seems to us clear that the Court was dealing only with the case in which the acknowledgment of debt had been made in favour of an heir and not of a stranger. In the case before us we find an acknowledgment of debt made by a man, in favour of a stranger, i.e., one who was not one o his heirs, at a period long antecedent to his death and intended as we find, to take effect only after his death. In accordance with the view of the law we take, we must hold that this acknowledgment is good provided that after the satisfaction of all debts of the deceased Hadji Yanni, the amount of the debt so acknowledged, together with the amount of any bequests the deceased may have made, does not exceed the value of one-third of his estate. If the amount of this debt, together with the amount of any bequests the deceased may have made, does exceed in amount the value of one-third of the estate, it must abate. One other point we ought perhaps to mention. It was pressed upon us by the respondent's counsel, that the bond though made nominally in favour of one who was not an heir of Hadji Yanni, was intended really for the benefit of an heir, that is to say for the benefit of Hadji Yanni's daughter, who is the plaintiff's wife. We have considered whether we should draw the inference that this was really an attempt to confer a benefit on one heir to the prejudice of another, and we have come to the conclusion that we cannot do so in this case. The deceased may have intended to do in fact what he did in form, viz. : confer a benefit on his son-in-law, and though such an acknowledgment of debt in favour of a son-in-law may be open to suspicion, we do not feel at liberty in this case to decide that the bond was given for the benefit of Eleni. There may be cases in which surrounding circumstances show that such an acknowledgment is merely a colourable one, and the transaction intended really to benefit an heir in a manner which according to our decision in this case, and to that in Theognosia Haralambo v. Evangheli Haralambo, cannot legally be effected, but we cannot say that the present case is one of them. Our judgment, therefore, will be that the judgment of the District Court be set aside, and judgment entered for the plaintiff for the amount claimed, subject to abatement, if this amount be found to exceed one-third of the value of the estate left by Hadji Yanni, after deduction of debts, and taking into consideration any legacies the deceased may have made. To give effect to this judgment it may be necessary, unless the parties agree, either that the amount claimed in this action does not exceed one-third of the testator's estate, or as to the value of the estate, to remit the action to the District Court for an account to be taken, and for judgment to be then entered for the plaintiff either for the full amount claimed, or for so much thereof as shall not exceed the value of one-third of the deceased's estate. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο