Court allows succession claim by illegitimate heirs under Wills and Succession Law s.46 while costs follow the event.

[*174] 1979 February 20

( PIKIS, P.D.C. )

IN THE DISTRICT COURT OF LARNACA

Floris Miltiades and another,

Plaintiffs,

v.

Maroulla Evagora Iacovidou and Others,

Defendants.

(Origin. Appl. No. 28/77).

Evidence - Pedigree proceedings - Parish or Church register - Ancient documents - Oral evidence - Inscriptions on family tomb - Admissibility in evidence.

Succession - Inheritance - Illegitimate children - Rights of succession - Section 46 of the Wills and Succession Law, Cap. 195.

Costs - Administration of Estates - Whether rule that costs should follow the event should be relaxed.

G. Nicolaides, for the plaintiffs.

A. Mathicolonis, for the Defendants.

JUDGMENT

The following judgment was delivered by:-

PIKIS, P.D.C.: This is an action by the administrators of the estate of Miltiades Economakis, late of Larnaca, for the determination of the hereditary share of heirs of the deceased, depending on their relationship to the deceased as well as the implications of an assignment of interest or rather a sale of the interest of a deceased heir of Miltiades Economakis, namely Lefkios Zenonos. The proceedings were initiated by originating summons under the provisions of s.53(l) of the Administration of Estates Law, Cap. 189, joining [*175] a number of heirs that disputed the distribution proposed by the administrators as defendants enabling thereby all interested parties to be heard in the matter. The only other living heir of the deceased, namely Antonakis Demetriou, testified as a witness for the plaintiffs. On the directions of the Court affidavits were filed setting forth the case for each side.

The dispute of the parties as adumbrated in the affidavits and elicited in evidence before the Court mainly centres round the parentage of the deceased and Chrystalleni Evgheniou Zenonos, in particular whether they were the children of a certain Epaminonda or of Constantinos Economides. It is common ground that the mother of the aforesaid persons as well as the grandmothers of the defendants and Antonakis Demetriou, namely Eleni Iacovidou and Eftychia Vassiliou had the same mother, namely Ekaterini. Ekaterini was married twice; firstly to Epaminondas and subsequently, in 1894, to Constantinos Economides. It is the case for the plaintiffs that subsequent to her separation and divorce from Epaminondas she cohabited with Constantinos Economides and that Chrystalleni Evgheniou Zenonos and Miltiades Economakis were the children of Constantinos and EKaterini. In the contention of the defendants Chrystalleni and Miltiades were, like Eftychia and Eleni, the children of Epaminondas and Ekaterini but inasmuch as the former two were still young at the time of the second marriage of their mother they took the name of her second husband, a course advantageous to them, so it has been suggested in evidence [*176] by the 1st defendant, because Constantinos Economides was a well to do person as opposed to Epaminondas who was a drunkard.

This is a pedigree action and the rules of evidence are relaxed in several and important respects making admissible, inter alia, hearsay evidence emanating from blood relations of the deceased as well as evidence of reputation. (See section 3,

Cap.9 and section 4(6), Cap.9; Phipson On Evidence, 11th edition, paragraph 1011 et seq.). Various reasons have been propounded in

justification of this exception, the most convincing being that the nature of pedigree issues inevitably involves an inquiry into facts that crystallized in the distant past and therefore it is difficult, if not impossible, to expect direct evidence in ventilating issues in dispute.

The evidence before me can be divided into four categories:-

(a) Evidence reproducing the contents of the Ayios Lazaros parish register of births, baptisms and deaths adduced by the Rev. Papastavros Spanos, the vicar of the church of Ayios Lazaros from the year 1958 and certificates of christening,

(b) Documentary evidence. A number of documents were produced, mostly personal documents of the deceased purporting to have been executed long ago, certainly much longer than twenty years ago. [*177]

(c) Oral evidence by the grandchildren of Eftychia and Eleni, coming from Mr. Antonakis Demetriou and Miss Iacovidou, relating statements made to them by their grandmothers as well as evidence of reputation on pedigree matters.

(d) The evidence of an old lady of 85, namely Miss Maria Petrou, who related to the Court statements made to her by Eftychia and Eleni and enlightened the Court on what was reputed to be the relationship among themselves of the four children of Ekaterini.

Parish Register

At Common Law the entry made in a register is admissible in evidence provided it is recorded pursuant to a statutory duty and the record is made promptly after the occurrence of the event it purports to record. I was not referred to any statute casting a duty on church authorities to record baptisms nor such a duty ever existed, to my knowledge. (See Phipson On Evidence, 11th edition, para. 1130 - Lyell v. Kennedy, 14 App. Cas. 437). However in pedigree proceedings church registers may, notwithstanding the absence of a statutory duty to record the events, be received in evidence not as public documents but as containing the declarations of deceased relations. (See Phipson On Evidence, 11th edition, par, 1027).

The significance of the records produced in relation to Chrystalleni and Miltiades mostly lay in the statements made by Constantinos Economides and, more important, Ekaterini as to the parentage of the aforesaid two persons. (See exhibit 1). Scrutinizing the entry ascribed to the baptism of Chrystalleni it appears that she was entered [*178] under two names and more likely than not the second name was written by a hand different from that that wrote down the first name. Miss Maria Petrou informed us that it was usual in her days for newly born children to be given more names than one and that Constantinos Economides himself was very much in that habit.

There is no suggestion of any tampering with this register which has been in the continuous custody of Rev. PapaStavros Spanos since 1958, nor evidence has been adduced disputing the practice under which entries were made in the register as explained by Rev. Spanos. The register, as we were informed by this witness, contitutes a continuous record dating back to the year 1834. Two other certificates of baptism were produced (exhibits 14 and 15) purporting to refer to the christening of Pandeleon and Christina, allegedly children of Epaminondas from his second marriage in order to establish by necessary implication that at the time of the birth of Chrystalleni and Miltiades Epaminondas was lawfully wedded to a woman other than Ekaterini, a fact suggesting that Ekaterini and Epaminondas were divorced at the time of birth of Chrystalleni and Miltiades.

It has not been disputed that Epaminondas married a second time or that he had children from his second marriage. Miss Maria Petrou stated that at the time of the birth of Chrystalleni and Miltiades, so far as she had been told, Epaminondas was married to another woman. Learned counsel for the defendants pointed out that there is a discrepancy that ought not to be overlooked regarding the name of Epaminondas as indicated in the affidavit of plaintiffs and in the aforementioned birth certificates. [*179]

Before concluding our reference to ecclesiastical records it may be noted that two other certificates were produced, that is the certificate of marriage of Constantinos Economides and Ekaterini Stylianou, exhibit 11 and a marriage certificate of Chrystalleni Economides and Evghenios Zenon, exhibit 7, issued in 1933.

Ancient Documents

Documents aged 20 years or older are receivable in evidence on the strength of a presumption to the effect that they had been duly signed, sealed and attested, provided they are produced from proper custody. It is a question of fact and degree whether in the given circumstances of a case a person is properly in custody of ancient documents. (See Halsbury's Laws of England, 3rd ed., volume 15, para. 637 et seq.). In this case the documents were properly in the custody of Mr. Antonakis Demetriou, a living relation of the deceased, having regard to the circumstances under which he came in possession of the documents. The documents were handed over to

him by the widow of the deceased shortly before her death. These documents were personal documents of the deceased evidencing

discharge on his part of his obligations in the Greek army. These documents are:-

(a) A book issued by the 3rd Army Corps giving a record of the conscriptions of the deceased as a soldier of the Greek army (exh.6). The significance of this document lay mostly in the fact that it indicates that the deceased was, like Constantinos Economides, a Greek national. Less importance should be attached to the statement made therein [*180] that Miltiades was the son of Constantinos Economides because in all probability the information emanated from Miltiades and not his parents.

(b) A certificate of the Greek army indicating that the deceased had discharged his military obligations ( exh. 8).

(c) A certificate of the Greek Consular Authorities in Cyprus certifying that Miltiades had discharged his military obligations (exh. 10).

(d) A hand-written note by an unidentified author interposed between exhibits 8 and 10 (exh. 9). Exhibits 8 and 10 signify, like exhibit 6, that the deceased was, like Constantinos Economides, a Greek national.

Lastly, reference may be made to the British passport of Eftychia Epaminonda, the grandmother of Antonakis Demetriou (exh. 12).

Oral Evidence

Antonakis Demetriou testified that his grandmother Eftychia told him that Miltiades and Chrystalleni were her half brother and sister, a well known fact in the family, evidenced, inter alia, by inscriptions on the monument and tomb stone of Miltiades Conomides and his family (see exh. 13). Such inscriptions may give rise to a presumption of family acknowledgements as well as serve as declarations by deceased persons. (See Phipson on Evidence, 11th ed. para. 1023). Indeed in this case the inscription on the tomb stone and the fact that Constantinos, Ekaterini, Chrystalleni and Miltiades were buried in the same tomb and were inscribed to be members of the same family affords [*181] evidence of a family acknowledgement and serves to indicate public reputation as to the relationship of Miltiades and Chrystalleni to Constantinos Economides. In his evidence Antonakis Demetriou made reference to the arrangements that had been made for the burial of his aunt Chrystalleni.

Miss Maroulla Iacovidou (defendant l) maintained that her grandmother told her that Miltiades and Chrystalleni were brother and sister of the full blood, a fact obscured by the desire of her aforesaid brother and sister to be known as the children of Economides, an option that was allegedly not open to Eftychia and Eleni because at the time of their mother’s marriage to Constantinos Economides they were already married. Miss Iacovidou appeared to know very little about her great grandfather Epaminondas and members of his second family, a subject that was not discussed among members of the family owing to the fact that Epaminondas was, as she told us, a drunkard. She was in no position to enlighten us about the date of the second.marriage of Epaminondas or the date of birth of his children. She maintained that she was forced to take up the subject of relationship of her great grandmother with the administrators of the estate of the deceased for the reason that a certificate Issued by the mukhtar showing the relations of the deceased, exhibit 3, was allegedly altered while in the custody of the Registrar, Larnaca District Court. She did not call either the Registrar or the mukhtar or anybody else for that matter in support of her allegation that

exhibit 3 was altered subsequent to its execution. It must be noted that no [*182] suggestion was made either to the administrator,

Floris Miltiades, or any other witness that exhibit 3 had been altered subsequent to its filing in Court. One other fact that must be noted is the statement made to her by her grandmother to the effect that Constantinos Economides favoured equally the four children of Ekaterini. Miss Maria Petrou, an aged lady of 85, with remarkable possession of her faculties gave evidence about conversations she had both with Eleni and Eftychia and statements made to her by the latter about their relationship to Chrystalleni and Miltiades and public reputation about the relationship of Eleni and Eftychia to Miltiades and Chrystalleni. According to her testimony both Eftychia and Eleni told her that Constantinos Economides was the father of Chrystalleni and Miltiades. And if her evidence is accepted the mother of Miss Iacovidou made conflicting statements about her relationship to Chrystalleni and Miltiades unless of course Miss Iacovidou is disbelieved. Miss Petrou also testified about the second marriage of Epaminondas and told us, inter alia, relating public reputation on the subject, that Epaminondas got married immediately to another woman after his divorce from Ekaterini. If that was the case it may well be that exhibits 14 and 15 relate to the baptism of his children from a second marriage.

Findings

In my judgment there is overwhelming evidence that the deceased and his sister Chrystalleni were the children of Constantinos and Ekaterini Economides. This is borne out by the statements of Constantinos and Ekaterini [*183] at the time of their baptism and indeed it was a well known fact as stated by Miss Petrou, a witness who impressed me extremely well and whose testimony I accept. Such documents as have been produced also indicate that Miltiades was the son of Constantinos and not Epaminondas. The family tomb and inscriptions thereon also suggest that Ekaterini and Miltiades were, as opposed to Eftychia and Eleni, the children of Constantinos, a fact confirmed inter alia by statements of Eftychia and Eleni to Miss Petrou and to Antonakis Demetriou by his grandmother. Miss Iacovidou impressed me poorly and rather left me with the impression that she tried to take advantage of the death of persons who had first hand knowledge of the parentage of Chrystalleni and Economakis in order to enhance her hereditary share. I place no reliance whatsoever on her testimony. Having given due consideration to the totality of the evidence before me I find that Ekaterini and Miltiades were the children of Constantinos Economides and Ekaterini. At the time of their birth the former husband of Ekaterini, namely Epaminondas, was married to another woman. Ekaterini and Miltiades were illegitimate at the time of their birth. Subsequently their parents got married in the year 1894. The question of legitimation of Ekaterini and Miltiades was touched upon by counsel in their final address though, in my opinion, it is of no relevance in view of the findings of the Court. I agree with Mr. Mathicolonis that the provisions of Cap.278 are inapplicable considering the date of enactment of the law and the absence of any provision giving retroactive effect to the law. However in accordance with the provisions of s.46 of the Wills & [*184]

Succession Law and the schedule made thereunder bastards have equal rights of succession in respect of the estate of deceased brothers and sisters as non bastards. The only qualification is whether they are brothers or sisters of the full or the half blood. Bastardy is only a bar to inheritance from parents. In this case the heirs of the deceased, including Lefkios Zenon, now dead, were descendants of deceased sisters. Considering that their share in inheritance is determined per stirpes they are entitled to a share equal to that that their ancestors would have enjoyed if alive (see s.49, Cap. 149). Lastly, the administrators may act on the strength of exhibit 5 provided the administrators of the state of Lefkios Zenon raise no objection to it and consent to its implementation.

Costs

The question of costs is pre-eminently a matter of discretion. The discretion of the Court, like every discretionary power vested in the Court, must be exercised judicially. In this area the principal consideration that should guide the Court in the exercise of its discretion is the outcome of the proceedings. (See Chrysoulla Eleftheriou v. Dora N. Roussou and Another, 23 C.L.R. 191). For obvious reasons only in exceptional cases should a Court of Law depart from this practice primarily in a case where the costs incurred are exaggerated for no fault of the defendant. (See Houssein Mehmed Birader v. Zekiye Ali Osman, 24 C.L.R.183). The fundamental rule of practice that costs follow the event is dictated by considerations of public policy particularly the need not to penalize a [*185] party in the right for taking his cause to the Court or viewing it from the angle of the defendant if he is successful not to penalize a litigant for defending his rights before the Court.

I am aware of a certain laxity on the part of the Courts in adhering to this rule in matters connected with the administration of estates. However I have not been referred to any principle whittling down the rule that costs should follow the event in proceedings of this nature nor do I feel that such practice should be encouraged, something that might conceivably give rise to a multiplication of proceedings in regard to the division of the estate. I shall, therefore, in these proceedings adhere to the basic rule that costs should follow the event subject to this: The action had a twofold purpose, one of which was unconnected with the claim of the defendants to rank as descendants of a sister of the full blood of the deceased. Therefore I shall, in the exercise of my discretion, adjudge the defendants to pay half the costs of these proceedings and I order accordingly.

Judgment and order for costs as above.