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Present: Hutchinson C.J. and Van Langenberg J.Feb. 17,1911
ABEYRATNA v. FERNANDO et ah182—D. C. Kalutara, 4,170.
Fidei commissum—Direction that the property devised “ be theinheritance ” 0/ the devisee—Prohibition against alienation by sons. and grandchildren.
A testator by his will gave separate lands to his several sons, anddirected that the lands so given to each son “ shall be the inherit-ance ” of that son. The will further provided as follows :—
“ As for the aforementioned lands, neither I, nor my five sons,nor the children of my five sons, that is to say, no individualof the said three generations, may sell, mortgage, or giftany of the same; only the power to enjoy and develop thesame is reserved to them.”
Held, that the will created a fidei commissum» and that it didnot confer on the children of the testator absolute title.
fJ^HE facts are set out in the judgments.
A. St. V. Jayewardene, for the appellant.
Bawa, for the respondent
Cur. adv. vult.
* (jm) 2 N. L. R. 190,
1 [J880) 7 Sr Cr C, 135.
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Feb. lr,1911 Hutchinson C.J.—
Ab^ratnav. This is a partition action. The parties agreed that lots B and Cemo described in the pleadings formerly belonged to Davith Rodrigo,who by his will gave them to his son Hendrick, and that the Courtshould first decide the issue “ whether the will of Davith created avalid fidei commissum in favour of the children of Hendrick, or didit confer on Hendrick an absolute title.” The Court decided onthat issue that the will created a valid fidei commissum. This isthe plaintiff’s appeal against that decision. The will, which is inSinhalese, and is dated April 20, 1861, gives in several separateparagraphs specific lands to each of the testator’s five sons, one ofwhom was Hendrick, directing that the lands so given to each son“ shall be the inheritance ” of that son. And in paragraph 12the testator says : “ As for the aforementioned lands, neither I,nor my five sons, nor the children of my five sons, that is to say, noindividual of the said three generations, may sell, mortgage, or giftany of the same ; only the power to enjoy and develop the same isreserved to them.”
In my opinion the testator here expressed his intention'that theland given to Hendrick should be his “ inheritance,” that is, shouldbe the share of the testator’s lands which should be allotted toHendrick and his descendants, and that Hendrick should not havepower to alienate it, but that after his death it should go to hischildren. I would therefore dismiss the appeal with costs. ■
Van Langenberg A.J.—
This is an action for the partition of a land The contestingparties are the plaintiff, who is the appellant, and the ninth defend-ant. The property in question belonged to one Davith Rodrigo,who died leaving a will, whereby he devised this property to his sonHendrick. Hendrick seems to have sold- the land, on the footingthat he was entitled to the full dominium, and the plaintiff claimsunder him. The ninth defendant asserts that the devise to Hend-rick was subject to a fidei commissum in favour of his children ofwhom the ninth defendant is one. Hendrick died some time beforethe action, and the ninth defendant claims to be entitled to one-fourth under the will of his grandfather.
The question is, Did the will create a fidei commissum ? The Judgefinds that it did, and the plaintiff has appealed. The clauses of thewill that have to be considered are the 9th and 12th. The originalwas written in Sinhalese, and the translation submitted to Court ranas follows :—
“ 9th.—One hundred yards from the border of the high roadto the west, 48 yards from south , to north, the treesthereon and the houses, with the exceptions of thehouse newly being erected on the border of the road,
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shall be entitled to Hendrick Rodrigo, and a cart roadfrom the high road of the northern boundary of the saidgarden Madangahawatta up to the seashore shall beopened in common.
12th.—The aforesaid land shall not be sold, mortgaged, norgranted in gift by me, David Rodrigo, or by my fivechildren, or by their children, that is to say, by any oneof the three generations, but the same may be possessedand improved.”
The Judge thinks that clause 9 can be rendered more correctlythus : “ I appoint that such and such lands shall become theinheritance of Hendrick Rodrigo ” ; and clause 12 he translates :“ As for the aforementioned lands, neither I, nor my five sons, northe children of my five sons, that is to say, no individual of the saidthree generations, may sell, mortgage, nor gift away the same ; onlythe power to enjoy and develop the same is reserved to them.”
The impression left on me when I first heard the will read wasthat it was the intention of the testator to benefit his grandchildren.Mr. Jayewardene argued, however, that the testator, while prohi-biting alienation, failed to designate the person in whose favour theprohibition was made, and that therefore Hendrick acquired abso-lute title. Several judgments of this Court were cited to us wherevarious wills were construed, but it was not suggested that in any oneof those wills the words used were precisely similar to those foundin the will under consideration. So that we have to consider thecase apart from direct authority. As Bonser C.J. observed inVansanden v. Mack,1 “ No special words are necessary to create afidei commission, but effect is given to it if it can be collected fromany expression in the instrument that it was the testator’s intentionto create it.”
I am of opinion that the combined effect of clause 9 and 12 is tocreate a fidei commission. It seems to me that under clause 12 thetestator contemplated the event of Hendrick's children receivingthe property, for he prohibits them from alienating the same, andto my mind there is sufficient to show that the provision prohibitingHendrick from alienating the property was made for their benefit.I would dismiss the appeal with costs.
1 (1895) 1 N. L. B. 311.
Feb. 17, 1911Van
. Lanoen-BBRG A.J.
ABEYRATNA v. FERNANDO et al