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Present : Ennis and Schneider JJ.
CEYLON MUTUAL PROVIDENT ASSOCIATION v.MENDIS et al.91—D-. C. Colombo, 487.
Mutual Providertl Association—Member nominating a person to receivecredit- balance and contributory call—Death of nominee—llule thatin absence of nominee sum- to be paid to tcidoto or heirs of member—Devise in last wilt of member to third- party.
Under the rules of the Ceykrp Mnfcnal Provident Association,each member could nominate a person of a specified class to be theperson to receive the credit balance and contributory call on thedeath of a member. In the absence of a nominee, the creditbalance and contributory call were to he paid to' the member’swidow, and if there be no widow to his children, and if there be nochildren to the next of kin or legal heirs. S, a member, nominatedD, who died before S. ' Then S died leaving no widow or children,but odly a sister and nephew as heirs. By last will S devised thisspecific sum to the widow of D.
Held, that the widow of D was entitled to the sum in questionunder the last will.
Emnis J.—” The rules merely say that the money shall be paidto a nominee, a certain specified person, and do not say that themoney should become the property of that person, and I know ofnothing.'by which the. payment under the rules would affect thedevolution of ownership according to the principles' of law.”
HE facts appear, from the judgment of the District Judge(H. A. Loos, Esq.):—■K. T. SolomonPieriswas a memberof the Ceylon Mutual Provident
ssoeiatiou,and,.in accordance withthe rules of the Association,
iminated his cousin, K.- T. Daniel Pieris, as the person to whom theisoriation was to pay the money to which he would become entitled>on his death under the rules.
X. T. Daniel Pieris predeceased Solomon pieris who died in July, 1919,iving made a last! will whereby he bequeathed to his sister-in-w, EginaPieris, theadded-defendant,all the money due to him, at
s death, by the Association, and the will was 'duly proved in this?urt in the action No. 6,843.
The Association brought the sum of Bs. 2,075.40 into Court in theestamentary Action No. G.843, and now asks this'Court to decide who,the various claimants to the money, is entitled thereto.
The firstandseconddefendants areexecutors of the last will'' of
rforaon Pieris, they do not claim the money, but alleged that the testatorfqueathed the money to Egina Pieris, and that she claims the money.
Egina Pieris, who was nor a party to this action, was then added us aCendant.
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The third and fourth defendants, who are wife and husband, claimthat the third' defendant who is the sister of Solomon Fieris is hisnest of kin, and as such entitled to the money.
The fifth defendant alleges that he is the only child of the deceasedbrother of Solomon Fieris, and that he and the third defendant beingthe only nest of kin of Solomon Pieris are, as such, entitled to themoney in accordance with the rules of the Association in equal shares.
The addod-defendant states that the money is payable to . the legalheirs of the deceased Solomon Pieris, in the absence of a nominee, thatshe is'the legatee named in the last will of Solomon Pieris, and themoney was bequeathed to her by that will, aud she, as the legal heir,is entitled to be paid the money. She is the widow of the nominee,K. T. Daniel Fieri#
The dispute is as to the interpretation to be placed on the last sixwords of that rule, as to whether the “ next of kin ** are intended to bepreferred to the “ legal heirs,” or whether the ” legal ” heirs are to bepreferred to the next, of kin, the ” legal heir " in this case not being anext of kin, assmning that the words “ legal heir " are to be accepted asmeaning the instituted heir, the persona designala—the added-defend-ant is the person to whom the money in question has been specificallybequeathed by the testator in his last will.
So far as the testator's intention is concerned, it is clear that it washis intention and desire that the money should go to the added-defend-ant, and the several authorities eited do not really assist very much inthe decision of the point now in dispute, for in those cases the questionwas as to the intention of the testators in using the ^various expressionswhich were used in the wills that had to be interpreted in those cases.
Here, there is no question as to the testator’s intention, but as tothe intention of the members of the Association, who framed the rulesin question, sitting in calm and solemn conclave and unswayed by anypersonal feeling or regard for any particular individual or class.
Rule 2 sets out that ” the objects of the Association are to promotethrift, to aid the members when in pecuniary difficulties, and to makesome provision primarily for their widows and orphans.” There is nowidow and no orphan to be considered in this case, but rule 22 makesthe claim of a member's nominee, duly appointed, override that of thewidow and the orphan.
In this case the nominee of Solomon Pieris was the hnsband of theadded'defendant, and it is not suggested that lie was not duly appointed,but the nominee died before Solomon Fieris, and the latter bequeathedthe money in dispute to his nominee's widow, Ihc added-defendant, bybis last will.
The question astowhether theAssociation would, orwould not,
have been justified in paying the money 1o the nominee's heirs, on thedeath of the member, on the footing that it cannot be urged that therewas an absence of a nominee, for a nominee had been duly appointed,was not raised or discussed.
It was contendedonbehalf of the third defendant thatthe words
’* legal heirs ” in therule 22 aremerely explanatory ofthe words
V next of kin ” in the rule. ” Next of kin ” can, of course, be the“ legal heirB ” of a man, but “ legal heirs ” need not necessarily be “ nextof kin,” using the words “ legal heirs ” as meaning the personsdesignated as heirsby a last will, as distinguished from the
words “ legal heirs ” in the case of an intestacy. If there had been nowill in question inthis case, then,of course, no difficultywould have
ariseu for the third and fifth defendants, as. the. next of kin would havebeen the legal heirs of Solomon Fieris who died unmarried, his parents
having predeceased him, and leaving only the third and fifth defendantsas next of kiu.
The third and fifth defendants cannot be regarded as the " legalheirs,” contemplated by (he rule 22, in this case I think, and theadded-defendant is entitled to l>e regarded as the “ legal heir.”
That, however, does not dispose of the difficulty in this case, for itremains to be decided whether the rules intend that the next of kinshould be preferred to the ” legal heirs.”
The Committee of Management of the Association has authorityunder rule 26 to make payment .of such money to any person or personswho at the time appears or appear to it to be entitled thereto, and therule provide^ that such payments shall be yalid and effectual againstany demand' made upon the Association or the Committee of Manage-ment by any other person or persons; and it is to be regretted thatwhen the applications were made fof the money now in question,a meeting of the members of the Association was not convened to■discuss the provisions of rule 22 and decide what the intention of theAssociation was, aud, if necessary, to alter the rule so as to make thatintention clear in unambiguous words.
The Courts may decide that the intention of the members. of theAssociation, was something different to what is really their intention,ami in that event no doubt a meeting will be convened to amendrule 2.-V
The rule 22 is very unhappily worded, so far as that part of it whichis relevant to this case is concerned—it sets out ” if there be no widow,to the children: and if there be no children, to the next of kbi or legalheirs ”—it does not state ” and if there be no next of kin, to the legalheirs,” as one would have expected, if the intention is that the next ofkin should be preferred to the legal heirs, so that it is. possible that theintention is that failing all the persons mentioned earlier, the money is tobe paid to the next of kin, or to the legal heirs if there be any suchinstituted—in other words “ to the next of kin unless there be legalheirs ” as distinguished from heirs of the body as in a case of intestacy.
I have the less hesitation in coming to the conclusion that that Isprobably the intention of the Association, for it accords entirely withwhat was ail along, from the time Solomon Pieris joined the Association,the intention of Solomon Pieris, viz., to benefit the added-defendant'sfamily, he originally nominated ■ her husband and on his death madehis last will by which he specifically bequeathed this money to the:added-defendant, who states that Solomon Pieris informed her that. it was his intention to have her name substituted for that of her deceasedhusband, as his ‘ nominee in the books of the Association, bht heapparently died before he could do so.
I would accordingly decide the first issue in favour of the added-defendant, and hold that she is entitled to the money in question.
There is no need, therefore, to consider the other issues raised in thiscase. The added-defendaftt is entitled to be paid her posts by the thirdand fifth defendants, who must also pay the costs of the first and seconddefendants. Die plaintiff's costs will be paid out of the money inquestion. I.et decree be entered accordingly.
Rules of the Ceylon Mutual Provident Association were asfollows: —
1. That the Association be called ” The Ceylon – 'Mutual ProvidentAssociation.”
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Thai the objects of thin Association are to promote thrift, to aid(he members when in pecuniary difficulties, and to make some pro-vision primarily for tbeir widows and orphans:
17. That the nominee or nominees .of a member shall be a memberor members of his faintly, including a bmia fide adopted child -where amember has no child or children of his own: or, failing such, any otherrelation. Such name or names shall be registered in the^ books of theAssociation as well as in the member's pass-book; provided- that onthe marriage of a member the nomination previously made by himshall cease to be valid, and that a fresh nomination shall be made bysuch member, -which shall be duly registered.
That on satisfactory proof of the death of u member being' furnished to the Treasurer, he shall have the . power to advance., to the
person nominated by the deceased, or, in the absence of a nominee, tohis widow, orphans, or next of kin, or in either case to some responsibleperson, upon application, a sum not exceeding one hundred rupees(Bs. 100)' to meet funeral and incidental expenses; and no claim by anyperson whomsoever shall be entertained in respect of such advance.Any sum so advanced shall be deducted from' the amount payable onaccount of the deceased .member.
On the death of a member the amount- available at his creditin the books of the Association shall be paid .to his nominee upon appli-cation. In addition to this payment, if the deceased member's namehad been twelve months or more immediately preceding his death on thebooks of the Association without his being liable to forfeiture of member-ship under rules 15 or 23, the Committee shall pay to the nominee acontributory call calculated at rupees two (Bs. 2) per head of memberswhose names have been for the same period on- the said books. The
– said payment ' shall be made w'ithin two months of application beingmade therefor; and in the event of the Committee 'not finding it practi-cable to make the payment within such time, then with interest on theamount due at the rate of 4 per cent, per annum from the expiry of thesaid two months. In the absence of a nominee the credit balance andcontributory call shall – be paid to the widow; if there be no widow, tothe children; and if there be no children, to the next of kin or legalheirs. Provided, that -if the' nominee be a minor, the amount due tosuch minor shall he deposited in the Ceylon Savings Bank for the benefitof the minor, and be subject to the rules of the said Bank in respect ofdeposits made for the benefit of minors.
Drieberg, K.C. (with, him Navaratnam), for appellant.Samarawickreme, for respondent.
September 5, 1922. Ennis J.—
This was an action brought by the Ceylon Mutual ProvideutAssociation, which- originated in the following circumstances. Oneof the rpembers of the Association, Solomon Pieris, died, and lefta credit balance and contributory call thereupon due by the Asso-ciation to somebody. The Association could not decide to whomthe money had to be paid, so they instituted this action and paid
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the money into Court. It appeal's that under the rules of theAssociation each member could nominate a person of a specifiedclass to be the person to receive the credit balance and contributorycall on the death of the member. In this case Solomon Pieris hadnominated his cousin, Daniel Pieris, who died, before SolomonPieris, leaving a widow, the added-defendanfc in the present caseand respondent in this appeal. Solomon Pieris then died leaving nwill by which he devised this specific sum. to the added-defendantin the present case. Under the rules of the Association, in the eventof the death'of a member and . in “ the absenpe " of a nomineewhatever that may mean, the Association' is bound to pay thecredit balance and contributory call to the widow, and if therebe no widow to the children, and if there be no children to the next-of kin or legal heirs. It'appears that Solomon Pieris left no widowand no children. The first and second defendants are the executorsof Solomon Pieris’s will. Tl^ third defendant is the sister ofSolomon Pieris, fourth defendant is her husband, the fifth defendantis a nephew of Solomon Pieris, and they all claim as next of kinand legal heirs. The learned Judge held in favour of the added-defendant, and the next of kin appeal, from that decision. I amunable to see the circumstances under which the substantial rightsof |he parties are affected by the decree under appeal, because thereis no legal principle upon which the nominee mentioned in therules (or, in the absence of a nominee, the person specified in therules), becomes the owner of the amount paid to him or her. Theeffect of . the rules, as at present formulated, is to provide that theAssociation shall be in a position to obtain a good receipt' for anypayments they make.- The rules merely say that the moneyshall be paid to a nominee, a certain specified person, and do notsay that the money should become the property of-that person, andX know of nothing tby which the payment under the rules wouldaffect the devolution of ownership according to the principles oflaw. It is possible that if the rules had added that the propertyshould pass to the nominee or the persons specified, it might- havebeen suggested that the devolution was based upon the contractbetween each, individual -member and the other members of theAssociation. However, the rules contain no such words, and the .words of the rule merely designate the destination of the property.This being an interpleader action, the question between the defend-ants is which of them is legally entitled to the property in question ?-Under the will of Solomon Pieris, which does not appear ^o havebeen contested, the added-defendant is the person intended to bebenefited in respect of this property:In the circumstances of the
case there' is no occasion to consider what the terms ‘ * next of kin ’ ’or “ legal heirs ” may mean in the rules of the Association, or, theorder in which the next of kin or legal heirs are to be paid. Theadded-defendant is entitled to the property, and whether she be
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CeylonMutualProvidentAssociationv v. Mendia
the person whom the Association should pay in the first instanceor not, the decree in her favour substantially declares the ultimatedestination of the property in question. I would accordinglydismiss the appeal with costs.
Schneider I agree.
CEYLON MUTUAL PROVIDENT ASSOCIATION v. MENDIS et al