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Present: Lascelles C.J. and Grenier J.
FERNANDO et al. v. SALGADO et al.
80—D. C. Negombo, 8,206.
Fidei commissum—Property to go over to Crown in case of alienation.
A joint will contained the following clauses :—
We, the testators, do hereby ordain that the property in-
herited by the right of our parents and those acquired byus, which are more fully described hereunder, are to bedevolved on the hereafter-mentioned seven children andothers who shall be the heirs after our death, and that theyare at liberty to possess severally as their shares ofinheritance.
After our death they shall take charge of their said respective
properties, and they, their children, grandchildren, heirs,and representatives shall possess the same, but they shallnot sell or alienate the properties in any manner, or causethe same to be subject to any mortgage or security; shouldsuch an act be committed, the right of the person whosells or alienates the land, or causes the same to be subjectto a mortgage or security, shall cease ; and it is ordainedthat the same shall go over to the Crown.
Held, that the will did not create a, fidei commission:
rjIHE facts are set out in the judgment of Grenier J.
Vernon Grenier, for the plaintiffs, appellants.
H. A. Jayewardene, for the defendants, respondents.
Cur. adv. vult.
April 11, 1911. Grenier J.—
Don Philip Constable and his wife Justina Lusena made a jointwill on March 12, 1842, and the only question argued on this appealwas whether it created a fidei commissum in respect of the landswhich are the subject of the action. The plaintiffs alleged that thetestator and testatrix devised the lands to their son MaximianoPhilips, who died intestate about thirty years ago, leaving an estateunder the value of Rs. 1,000 ; that Maximiano left as his heirs hiswidow Agida Fernando andfour children: (1) Gregoris, (2) Madelena,
Desideris, and (4) Elizabeth ; and that by an amicable arrange-ment between these four persons the lands in question were allottedto Elizabeth, whose children the plaintiffs are. Elizabeth left a
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last will, which was proved in case No. 1,062 of the District Courtof Negombo, and probate thereof was granted to the father of theplaintiffs. As their cause of action the plaintiffs alleged that thedefendants, who were not entitled to any shares in the lands allegingthat they had purchased the same under a writ, took forciblepossession on November 10, 1909, to plaintiffs* damage of Rs. 500.
The defendants denied the ouster, but admitted the originalsource of title as having been in Don Philip Constable and his wife,as also the devolution of that title on the plaintiffs ; but they deniedthat there was any amicable arrangement by which the lands wereallotted to Elizabeth, under whom plaintiffs claim, or that anyvalid fidei commission was created by the will. The defendantsalleged that under writ in case No. 7,271, D. C. Negombo, againstthe heirs of the four children of Maximiano, the lands were sold andpurchased by the defendants, who obtained Fiscal’s transfers forthem—Nos. 6,108, 6,109, and 6,110, dated April 27, 1910.
At the trial two issues were framed : (1) Does the will of March 12,1842, create a valid fidei commissum ? (2) If so, can the plaintiffsalone maintain this action ? The District Judge was of opinionthat there was no fidei commissum, but his reasons do not seem tobe sound, and 1 cannot adopt them. I think he made a mistake inholding that the fidei commissary, or the party to benefit, was theCrown, and that failing the Crown the lands were to go to thedevisees, their children, grandchildren, heirs, and representatives.This is how I understand the judgment of the District Judge, as itis a very short one, and contains little or nothing in the shape ofstatements, arguments, and conclusions. But he has, I think,distinctly held that the several devises in the will were absoluteones, and that by the use of the words “ heirs and representatives ”the devisees were given power to will or transfer the property.
This makes it necessary that the will should be carefully andcritically examined. I have read and re-read it, and I can onlysay that it is a very confused document, and it is difficult to saywhat was in the mind of the notary who drew it up. It is impossibleat this distance of time to find out what the instructions were thatthe testator and testatrix gave him, but it is a well-known factthat, in dealing with property by last will, there is a determinationgenerally shown by testators of the class to which the testator andtestatrix in this case belong to impose conditions in the nature of afidei commissum, so as to keep the property in the family. Now,in the second clause of this wiU I find these words : “ We, thetestators, do hereby ordain that the property inherited by the rightof our parents and those acquired by us, which are more fullydescribed hereunder, are to be devolved on the hereafter-mentionedseven children and others who shall be the heirs after our death,and that they are at liberty to possess severally, as their shares ofinheritance.”
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Standing by itself, the clause contains words the meaning andintention of which are plain enough. The use of the words “ whoshall be the heirs after our death” and the words “ are at libertyto possess severally as their shares of inheritance” indicates anintention on the part of the testator and testatrix to make anabsolute devise to each of his seven children of separate, and distinctlands or shares of lands. And this they proceed to do in the succeed-ing clauses. The will deals with no less than thirty-parcels of land,which are specifically left to each of the seven children, some ofthem getting three and some more. There are two devises to twoadopted sons of the testator and testatrix. Immediately followingon those dispositions is the clause by which it is said a fidei com-missum was imposed : “ In this manner, after our death they shalltake charge of their said respective properties as we have ordained,and they, their children, grandchildren, heirs, and representatives
. shall possess the same, but they shall not sell or alienate the said
properties in any manner, or cause the same, to be subject to anymortgage or security ; should such an act be committed, the rightof the person who sells or alienates the lands or land, or causes thesame to be subject to any mortgage or security, shall cease ; andit is ordained that the same shall go over to the Crown.” If thisclause is strictly construed, then it follows that the testator andtestatrix imposed seven independent and distinct fidei commissa onthe lands dealt with by the will. Not only so, but they imposedtwo more fidei commissa on the lands devised to the two adoptedsons, Juanis and Francisco. Could this have been their intention ?For, after all, in cases of this kind it is a question of intention. Or,was it their intention, by the insertion of a provision against alien-ation, the purport of which they failed to realize, to seek to securetheir grandchildren and descendants in the succession, according tothe ordinary rules of inheritance, of the several lands left to theirseven children unfettered by any trust ? The strong inclinationof my opinion is in favour of the latter proposition, and my reasonis this. If either the testator or the notary had any the leastknowledge of the law offidei commissum, and their intention was toburden these properties with one or seven trusts, they would haveinserted a clause prohibiting alienation absolutely. Here theyappear to have contemplated and provided for alienation, whichcan only be explained on the hypothesis that they intended thatthe several devises should be absolute ones, and not in the natureof a devise to a fiduciary, who has a real but burdened right ofproperty. The gift or disposition therefore in favour of the Crown,in case of alienation, appears to my mind to militate against the viewthat a fidei commissum was intended, because no alienation couldaffect the operation of a trust of this nature under the Roman-Dutchlaw, as the interests of four generations are bound up in it, and thefidei commissum, instead of running out its legal span, would come to
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an abrupt termination. Perhaps it was intended that there shouldbe a gift over to the Crown in case of alienation.
I am supported in the view I have taken of the clause in question,and of the will generally, by the conduct of the four children ofMaximiano Philips. They appear to have made an amicable arrange-ment, on the plaintiffs’ own showing, by which the three landsin question were allotted to one of them, Elizabeth, the motherof plaintiffs. What, then, became of the alleged fidei commissum,according to the terms of which these lands were to go to all the“ children, grandchildren, heirs, and representatives ” of Maxi-miano ? The children of Maximiano undoubtedly understood thewill as containing an absolute devise to their father, and on thatfooting, in exchange presumably for other lands, three of themgave the lands in question to Elizabeth, to be possessed and enjoyedby her as her separate property. The two cases, (1) Aysa Umma v.Noordeen,1 (2) same case (in review), referred to in the. course of theargument, are distinguishable from the present case, in that the word“ assign ” is not present here. It is difficult to say what precisemeaning was intended to be attached to the words in this will“ heirs and representatives.” It seems to be entirely out of placein the connection in which it is used, and was put in, I think,haphazard by the notary, who must have been impressed with thecomprehensive meaning of the words and their sonorous sound.
In my opinion it is not possible to hold, for the reasons I havegiven, that the will under consideration created any fidei commissum,and it is a wholesome principle of the law relating to the subject,that in cases of doubt the Court should not put any burden upon theinheritance. I would dismiss the appeal with costs in both Courts.
Lascelles C.J.—I agree.
‘(JOT*) * X. If. X.173.
FERNANDO et al v. SALGADO et al