H. N. G. FERNANDO, S.P.J.—Lairis Appu v. Petris
1985 Present: H. N. G. Fernando, S.P.J. and Abeyesundere, J.A. M. LAIRIS APPU, Appellant, and D. PEIRISand 7 others, Respondents
S. C. 36 (F) and 44 (Inty.) of 1962—D. C. Kurunegala, 403/L
Fideicommissum—Last Will—Devise to testator's children—Si sine libcris decesserit
clause—Interpretation—Effect when a devisee dies leaving issue.
A si sine liberis decesserit clause in a Will devising property to the testator’schildren nominates the persons who will take in the event of the death withoutissue of a devisee. Hut the mere fact that the children of one deceased deviseeare'nominated as heirs after the death of another devisee is no indication of anintention to fetter the property in the hands of a devisee who in fact has issue.
By her Last Will a testatrix devised property in equal shares to her threesons A, B and C, all of whom survived her. One clause in the Will read asfollows :—
“ Should any of my sons die unmarried or married but without leavingissue then and in such case I desire and direct that the share of such dyingson shall go and devolve upon his surviving brothers and the children ofany deceased brother such children only taking amongst themselves theshare to which their father would have taken or been entitled to if livingsubjoct however to the right of the widow of such son who shall have diedleaving no issue to receive during her widowhood one fourth of the nettincome of the property or share to which her husband was or would havebeen entitled to hereunder.”
The plaintiffs were the children of A, who died in 1954. A had transferred hisshare of the property in 1951 to a person whose title passed subsequently to the1st defendant-appellant.
Held, that the Will did not create a fideicommissum in favour of the plaintiffsoperative on the death of their father.
A.PPEAL from a ,udgment of the District Court, Kurunegala.
W. Jat/eimrden Q.C. with L. C. Seneviratne, Sepa'a Moone-singheand B. Eliyatamby, for the 1st defendant-appellant.
H. V. Perera, Q.C., with A. C. G^oneralne, for the plaintiffs-respondeiits.
Cur. adv. vult.
August 25, 1965.—H. N. G. Fernando, S.P.J.—
The plaintiffs brought this action for a declaration of title to a land calledRaglan Estate stated to be of an extent of two hundred and seventy-one acres. Their case was that the Estate formed part of the propertyof one Adelene Winifred Peiris (who will be referred to as “ the testatrix ”)lx ix—82H 1200 (l/c;>
H. N. G. FERNANDO, S.P.J.—Lairia Appu v. Peiria
who died in December 1918 leaving a Last Will bearing No. 4188 dated3rd June 1910. By this Last Will she made certain bequests to herdaughters, and then bequeathed the residue of all her property to hersons in equal shares subject to certain conditions to which I will laterrefer. The plaintiffs’ case was that Raglan Estate was one of theproperties covered by this residuary bequest to the sons of the Testatrix,who were three in number and who all survived their mother. However,on 31st May 1917, she and her husband entered into an Indenture bywhich she agreed to bind herself, her heirs, executors and administratorsthat her properties shall be distributed and settled in the manner men-tioned in the Indenture. Paragraph 11 of this Indenture provided that,within three months of the date of the Indenture or whenever thereaftercalled upon by her husband, she shall convey by way of gift to her eldestson Richard Louis her Moragolla Group of estates stated to be aboutone thousand acres, subject again to certain conditions. It was theplaintiffs’ case that the Moragolla Group of estates included RaglanEstate. The agreement in this Indenture was apparently not carried outand the husband who had the right to call for performance of theagreement died a few weeks before his wife.
The plaintiffs in the present action are the children of Richard Louis,who died in December 1954. They claim that the combined effectof the Last Will and of the Indenture was that the Moragolla Group ofestates passed on the death of the testatrix to Richard Louis, and that,by reason of the conditions contained in the residuary bequest in theLast Will, Richard Louis held the Moragolla Group, which includedRaglan Estate, under a fideicommissum in favour of his children. Onthis basis the title to Raglan Estate vested in the plaintiffs on the deathof their father Richard Louis in 1954.
In November 1951 Richard Louis sold Raglan Estate to one U. B.Senanayake. By virtue of certain subsequent transactions of Senanayakethe title he acquired from Richard Louis passed on 9th August 1952 tothe person who is now the Appellant in this appeal, and who was inpossession of the Estate at the time of the institution of this action.
The claim of the plaintiffs that the Last Will and the subsequentIndenture had a combined effect is an unusual one.
It would appear that after the death of Adelene Winifred Peiris andher husband, disputes arose among the heirs, presumably because of theprovisions in the Indenture by which she had agreed to distribute herproperty in a specified manner. All matters in dispute were apparentlyreferred to arbitration. The award of the arbitrator was subsequentlymade a rule of Court in the Testamentary proceedings in which the willwas declared proved. This award declared that, although the agreementin the Indenture of 1917 had not been implemented during the life ofAdelene Peiris, it was nevertheless binding on her heirs. Although thematter was not clarified in any way at the trial of this action, counselfor the plaintiffs in Appeal has argued that certain assumptions may nowbe made upon the pleadings. One snoh assumption is to be that the
H. N. O. FERNANDO, S.P.J.—Lairia Appu v. Peiria
three sons of the Testatrix, who were entitled under the Last Will to thewhole residuary estate in equal shares, each took instead propertieswhich their mother agreed by the Indenture to transfer to each of them.There is no evidence whatever of any actual division of property nor ofany conveyance by executors. Nevertheless in disposing of this appealI can accept the correctness of this assumption. In doing so I shouldpoint out that in the pleadings, the defendant (i.e. the present Appellant),while claiming that Richard Louis was absolute owner of Raglan Estate,did not present as a ground for that claim any basis different from thatrelied on by the plaintiffs, viz., that Richard Louis took the entirety ofMoragolla Estate because of the Indenture of 1917 and the award of thearbitrator and that his two brothers took other properties in lieu ofshares in the residuary estate. If, as the appellant claimed, RichardLouis became the owner of Raglan Estate, then on the evidence in thiscase he could have become owner of the entirety through some sucliarrangement as was suggested in the argument of plaintiffs’ counsel.
The learned trial Judge held that “ the Last Will created a fideicom-missum in favour of the plaintiffs, but the disposition of the propertywas by the Indenture ”. But the position of the appellant has beenthat the Last Will does not affect the property which is the subject ofthis action. This position was based upon a finding of the arbitratorin his award P3 that the Indenture of 1917 “ is binding on the heirs ”of the testatrix and her husband, and that, “ the two testaments do nottherefore deal with the properties dealt with by the Indenture. ”. (Ishould state that the second testament here mentioned is the Last Willof Adelene Winifred’s husband, which also was a subject of the arbitra-tion, although nothing is known as to its terms.) In the result the firstcontention for the appellant has been that, even if the Last Will of thetestatrix created a fideicommissum, the property which Richard Louistook by virtue of the Indenture and award is free of that fideicommissum.The effect of the Indenture, it was argued, was to render the earlier LastWill inoperative, at least in respect of the properties specifically dealtwith in the Indenture. An alternative contention (taken for the first timein appeal) was that even if the fideicommissum attaches, it can affectonly a one-third share of Raglan Estate, for that was the only interestin Raglan Estate which was devised to Richard Louis by and under theconditions of the Last Will.
In my understanding, Counsel for the plaintiffs in appeal furnishedwhat might be an effective answer to these contentions. His positionwas that so soon as the Last Will was admitted to probate its provisionsbecame immediately operative, and Richard Louis became entitled toa one-third share of the residuary estate subject to the conditions setout in the Will. If those conditions created a fideicommissum in favourof Richard Louis’s children, then bom or unborn, the rights of thosefideicommissaries could not thereafter be prejudiced by any act orcompromise on the part of Richard Louis, except a bona fide compro-mise concerning the division or distribution of the estate among the threedevisees. The question whether the Will created a fideicommissum,
172H. N. G. FERNANDO, S.P-J.—Lairia Appu v. Petris
being one which principally affected the rights of the contemplatedfideicommissaries, could not be resolved to the detriment of those rightsin any proceeding or agreement between the three devisees inter se.Even therefore, if the arbitrator intended to decide that the conditionsof the residuary devise did not apply to the property which RichardLouis actually took, that decision does not bind the fideicommissarieson the question whether or not that property was subject to the fideicom-missum. But in so far as the award can be regarded as a scheme ofdivision of properties in accordance with the Indenture in substitutionfor the division of residuary property in three equal shares to RichardLouis and his two brothers, the award was made in furtherance of abona fide agreement for a settlement by arbitration of disputes con-cerning an equitable mode of distribution. There being no plea in thiscase that the division was sought or secured in bad faith, the divisionitself binds the fideicommissaries who are now plaintiffs. The divisionalso binds Richard Louis and his brothers because it was made a ruleof Court, and it also binds Richard Louis’s successor in title to RaglanEstate who is the appellant in this case.
In brief, the position taken by counsel for the plaintiffs is that theoriginal one-third share of the residue devised to Richard Louis by theWill became converted by reason of the award into the Moragolla Groupof estates, of which Raglan Estate is one, and that his title to Raglan(Estate was subject to the same conditions as were imposed by the Willis respect of the one-third share.If then those conditions created a
fideicommissum in favour of the plaintiffs, title to Raglan Estate passedto them on the death of Richard Louis as claimed in the plaint. I havestated my acceptance for present purposes of this position and havereferred to certain other matters in order to record briefly the argumentspresented in appeal. But I do not find it necessary to refer to theauthorities upon which counsel relied, or to decide whether or not RaglanEstate did devolve on the plaintiffs’ father under the Last Will. Foreven if so, in any event the conditions in the Last Will did not create afideicommissum in favour of the plaintiffs.
The clauses of the Last Will upon which the plaintiffs rely are thefollowing :—
(а)"I give devise and bequeath all the rest residue and remainder
of my property and estate movable and immovable unto mysons in equal shares subject to”
(б)“ Should any of my sons die unmarried or married but without
leaving issue then and in such case I desire and direct that theshare of such dying son shall go to and devolve upon hissurviving brothers and the children of any deceased brothersuch children only taking amongst themselves the share towhich their father would have taken or been entitled to if livingsubject however to the right of the widow of such son whoshall have died leaving no issue to receive during her widowhoodone fourth of the nett income of the property or share to whichher husband was or would have been entitled to hereunder.”
H. N. G. FERNANDO, S.P.J.—Lairia Appu v. Petris
(c) “ If any of my said sons shall die leaving children and also a widowthen and in such case I desire and direct that the mother ofsuch children during her widowhood shall be entitled to andreceive one fourth of the nett income of the property to whichher children would be entitled to under this my will.”
It is useful to set out the events and consequences contemplated inthe above clause which has been for convenience lettered (b) ; and Iwill do so in the context of the actual fact that Adelene Winifred’s threesons all survived her :—
If of the three sons, A, B and C, A dies unmarried, the share of Awill devolve upon B and C.
If A dies married but issueless, leaving a widow, the share of Awill again devolve on B and C, but subject to the widow’s right to onefourth of the income of the property or share to which A was entitled.
If B had predeceased A and left children surviving him, thenon A’s death the share (in this context better described as the interest ”)which would devolve on B if he were to have been then living woulddevolve instead on his children.
In the event contemplated at (3) above, then on the subsequentdeath of C unmarried or issueless, the one-third share devised to C bythe Will will devolve on B’s children.
This analysis of the events contemplated in clause (6) is not exhaustive,but it suffices for present purposes. So also, it is not necessary to considerwhether the interest which would on A’s death devolve on B and C interms of (1) and (2) above, would or would not continue to be governedby the conditions in clause (b).
Passing now to clause (c), it provides :
That if A, B or C dies leaving issue and a widow, then the widowwill be entitled to one fourth of the income of the property to whichher children would be entitled under the Will.
Having regard to the provisions in clause (b) which entitle the childrenof a deceased son to certain interests as may devolve on those children 'upon the death issueless of an uncle (which have been referred to at (3)and (4) above), clause (c) has a plain meaning, namely, that such interestswill be subject to the right of the mother of those children to receiveone fourth of the income therefrom.
The clauses therefore expressly provide for two matters : firstly theimposition of a fideicommissum upon the share of each son, conditionalupon his death without issue, in which event the fideicommissaries willbe the surviving brothers, the children of a deceased brother taking byrepresentation in his place ; and secondly that the widow of a son dyingchildless wifi have a right to a part of the income of the property orshare which that son had, and that the widow of a son dying withchildren surviving him will have a similar right to income from anyproperty which may devolve on those children under the Will. So far
2*—H 1209 0/67)
H. N. G. FERNANDO, S.P.J.—Lairis Appu v. Peirig
as these express provisions go, the children of a son who dies leaving issuewill not on the death of their father succeed him as fideicommissarysubstitutes.
The argument for the plaintiffs depends on the fact that clause (b)is a si sine liberis decesseril clause. That argument was rejected in tworecent decisions of this Court in de Silva v. Rangoham;/ 1 and Rasammahv. Gocindar Manar 2.1 need not here re-capitulatc the reasons for that
rejection which are stated in my judgment in the former case. Butcounsel for the plaintiffs has urged that the testatrix in the present Willhas indicated her intention to make a gift-over to the children of herson Richard Louis upon his dying leaving issue. This indication, itis argued, is shown by the fact that, under the clause which I havelettered (b), the children of a deceased son B are designated as fidei-commissaries in the event of the subsequent death without issue of theson A. But it has to be noted that in the case thus contemplated thechildren of B only take the place of their deceased father. Every sisine liberis clause has the effect of nominating the persons who will takein the event of the death without issue of a donee. But the mere factthat the children of one deceased donee are thus nominated as heirsafter the death of another donee is no indication of an intention to fetterthe property in the hands of a donee who in fact has issue.
It should not be supposed that the j udgments in the two recent casesevince any special readiness of the Courts to uphold the existence of afideicommissum when property is subject to a si sine liberis clause. Sucha clause is only one circumstance, taken with the others, which maytogether suffice to establish an intention to make a gift-over to the childrenof a donee who docs not die issueless. Any readiness to assume suchan intention from the mere existence of the clause would be in conflictwith the principle of construction “ Expressio unius est exclusioalterius ”.
The conclusion I have reached, that the two relevant clauses of theWill do not create a fideicommissuin in favour of the plaintiffs operativeon the death of their father, is confirmed by other considerations.
For instance, it is at least doubtful whether if Richard Louis predeceasedthe testatrix but left children surviving him, those children would byrepresentation have taken their father’s one-third share upon the deathof the testatrix. If she failed to provide for her grand-children in thatevent, there is little room to suppose that she intended that the propertywhich Richard Louis actually took under her Will should be subject toa gift-over to those grand-children after their father’s death.
Again when invited to infer such a gift-over from the clause lettered
, I think it prudent to compare this clause with the earlier clause inthe same Will applicable to the gifts which the Testatrix directed for herdaughters. That clause is easily summarised. It contains :
A prohibition against alienation and a restriction of the enjoymentof the gift to the life time of each donee.
1 (1961) 62 N. L. R. 653.* (1963) 65 N. L. R. 467.
H. N. G. FERNANDO, S.P.JLairi-a Apptt v. Peiris175
A condition that after the death of a donee, the property will
devolve on her children in equal shares.
A sine liber is clause, in favour of the surviving sisters of the
donee and of the children of a deceased sister.
The provision mentioned at (2) quite clearly and simply creates afideicommissum in favour of a donee’s children operative on the deathof the donee. Equally clearly, the third provision provides for a fidei-commissum operative in the alternative event of a donee dying childless.It is only this third provision of the devise to daughters that correspondsto the clauses providing for the devise to the sons, the only differencebeing that in the latter case the widow of a deceased son can take certaininterests.
To accept the arguments of the plaintiffs upon the clause lettered (b)would be to assume that the notary, who had carefully provided for theobject to be secured by the second provision of the earlier clause, thoughtat a later stage of his work that the same object could have been securedby the third provision alone. Plaintiffs’ counsel himself referred to theexperience and reputation which the particular notary had enjoyed.The significant difference between the earlier clause and the clause lettered(b) makes it apparent that, in the case of the devise to the sons of thetestatrix, the notary had no instructions that the devise should be subjectto the fideicommissum for which the plaintiffs contend.
One matter which arose only at the stage of appeal was whether probateof the Last Will had been duly granted. We permitted the plaintiffsto produce relevant material with regard to this question. The recordof the testamentary case is apparently incomplete and parts of it aremissing, but there was produced the original of a grant of probate bythe District Court of Colombo of the Will dated 3rd June 1910 of AdeleneWinifred Peiris. This grant of probate bears stamps to the value ofover Rs. 19,000 and specifies the value of the total estate. The Willwas not attached to this grant, but there is a copy of the Will No. 4188of 3rd June 1910, certified on behalf of the Secretary of the DistrictCourt of Colombo, to the effect that it is a true copy of the Will filedin Court in an action bearing the same number as does the probate.This and other material sufficed to establish that the probate of the Willnow propounded was in fact granted. I
I hold that even if Raglan Estate or any share thereof devolved onthe father of the plaintiffs under the Last Will of the testatrix, the termsof the Will did not create a fideicommissum in favour of the plaintiffsoperative on the death of their father. The appeal is allowed and theplaintiffs’ action is dismissed with costs in both Courts.
Abeyesundere, J.—I agree.
A. M. LAIRIS APPU, Appellant, and D. PEIRIS and 7 others, Respondents