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Present: De Sampayo and Schneider JJ.
JOSEPH et al. v. MARIA WENDT et al.
84—-D. C. Colombo, BS8.
Jus accrescendi—Joint legacy—Defined share—Death of life-renter—
Accrual of interest—Lapse into residue.
Where a last will contained a direction to the' trustees to apply therents of a certain property as follows—“ One-naif of such rentsto M. W. daring her life for her maintenance, and the other halftowards the maintenance, education, advancement in life of L, M.; ”and where, by a codicil the said' benefit was extended to anotherperson in' the' following terms:—“Whereas I am desirous that J. J.should participate and have an equal one-third share in .the saidprovision, I do therefore give and devise to J. J. an equal shareand interest in the aforesaid house and- rent thereof, and desirethat the bequest should be .subject to the same condition aridprovision as are made applicable to the other two devisees."
Held, that the bequest was of a defined share of the rents toeach of the three devisees, and that, on the death of J. J., herinterest did not accrue to the other two.
Held, further, that on the death of J. J. her share of the rentsfell into the residue as indicated in clause 8 of the will.
PPLICATION by the trustees of the last will and testamentof the late Mr. C-. L. Ferdinands for a direction from the
Codrt as to the distribution of one-third share of the rents of theproperty known asV “ Villa St. Leonards. ” The answer to thequestion depended on the construction of the fifth and eighth clausesof-the will, taking them in connection with the codicil to the- will.The fifth clause was as follows so far as it relates to the matter inissue i—“ To pay and apply- the rents of ‘Villa St. Leonards’after the deductions for taxes and repairs as follows: One-half ofsuch rent to my sister-in-law during the life, for' her maintenance,and to apply the other half of such rent towards the maintenance,education-, advancement -in life of my nephew, L. if., who has beenunder my care and protection. ”■ The codicil provided aS follows: —“ Whereas I am desirous that my niece, -J. J., should participate andhave an equal one-third share in the said provision, I do thereforegive and devise to my said niece, J. J., an equal share and interest inthe aforesaid house and rent thereof, and desire that the bequestshould be subject to the same condition and provision as are madeapplicable to the other two devisees. ” ‘’
T.he eighth clause of the will contained tire following direction:—1 .desire that my debts be paid by the sale of the real .and personalproperty not herein specially bequeathed, and' the balance proceeds
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be divided equally among my brothers and sifters ….. and
among M. W., L. M., and … all of whom J appoint residuary
legatees of this will.
Two questions arose for consideration: First, whether, on thedeath of J. J., the two surviving beneficiaries became entitled toher share of the rents; secondly, if they did not, did such share passto the residuary legatees mentioned in clause 8, or to the intestatehen's'of the testator?
The learned District Judge held that, on the death of J. J., herinterests accrued to the other two devisees on the principle ofjus accrescendi.
Samarawickreme (with him H. V. Perera and F. C. Loos), forappellants.—There is no room for the application of the rule ofjv>s accrescendi, as a defined' share is given to each devisee. l;herule applies to the case of a legacy to a class, and then only where alapse occurs. Here all the legatees survived the testator. Evenif J. J. predeceased the testator, the rule would not apply, as thisis a bequest of one-third share to each.
Under the English law accrual among co-legatees occurs whena legatee dies during the lifetime of the testator, unless the benefit-of survivorship is specially added (Jarman on Wills, p, 430).
A‘class gift is a general one, and the class bears a certain relationto the testator.
It is submitted that there being no accrual, the testator diedintestate with regard to* the disposition of the rents of the share ofJ. J. after her death.
Hayley (with him Choksy), for lespondents.—The clear intentiouof the testator was to benefit the three devisees out of the rents ofthe house. It is only after the death of all the life-renters thatthe property is directed to be sold. His intention was that, untilall the life-renters' interests are exhausted, they should not fallinto the residue. The result would be that the residuary legatees-would not be entitled to claim the rents of the property until allthe life-renters of. the property hud died.
William on Executors, vol. 2, p. 1208, states the law asfollows:—“ Where, however, words, which according to the commonrule constitute a tenancy in common, are combined with, or followed,by other's, which would make a* tenancy in common inconsistentwith the manifest design or* the subsequent bequest of the testator,they may be taken to indicate, not the nature, but the proportionof the interest each party is to take. ”
June 9, 1925. De Sampayo J.—
Both these appeals raise the same question, and the respondentsare the same, though the appellants are two separate sets of peti-tioners. Both the appeals will, therefore, be considered together-.
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The question relates to the construction of the will of the lateC. L. Ferdinands, whose estate is being presently administered bycertain trustees. At the time of his death, the testator left thethree children of his deceased sister, Jane Joseph, namely: (1)Jennie Joseph, (2) William Arnold Joseph, and (8) John Ferdi-nands Joseph, of whom the last two are the appellants in appealNo: 64. He also left several sisters, who are the appellants inappeal No. 64a^ The respondents to both appeals are MariaWendt and L. M. Maartensz who are beneficiaries under the will.Hie proceedings out of which the appeals arise may be regarded asan application by the trustees for directions of the Court as towhether the rent of the house “ Villa St. Leonards ” (property ofthe estate) is distributable among the appellants and respondents,or is payable entirely to the respondents alone.
The answer to this question depends on the construction of thefifth and eighth clauses of the will, taking them in connection withthe codicil of the will. The fifth clause of the will is asfollows:—
“ I desire that my executor should apply the proceeds of the twopolicies "of assurance of my life in the Royal InsuranceCompany to free from mortgage my houses in Flower roadcalled * St. Leonards * and * Villa St. Leonards/ andI give and devise both properties to my said executors. in trust to rent the same, and, after deducting from suchrent a percentage to pay taxes and repairs, to pay thebalance rentof‘ St. Leonards’to mysisters,or the
survivors or survivor of them for their maintenanceduring their lives free .from the debts and control of thehusbands of any of them, their own receipts being acceptedin full discharge, and such rents shall not he paid to themin anticipation, my intention being that .the rents shouldbe applied for their own maintenance. And to pay andapply the rents of * Villa St. Leonards ’ after the samedeductions for taxes and repairs, as follows:—One-halfof such renttomy sister-in-law,MariaWendt,during
her life for her maintenance, and to apply the other halfof such rent towards the maintenance, education, andadvancement in life of—my nephew, Lewis Mathew Maar-tense, who has been under my care and protection for thelast seven years. I empower my executor, if need be,to apply halfthevalue of 4 VillaSt. Leonards ? towards
the educationandadvancement inlife ofthe saidLewis
Mathew Maartensz. And in further trust after tlie deathof the said life-renters to stell the said tvo properties ansidistribute the proceeds among those l have hereinafterappointed the residuary legatees of this will/’
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. It should be here stated that by the codicil, the testator, afterreferring .to the provisions of clause 5 of the -will in favour of MariaWendt .and L. M. MaartenSz with regard to the rent, of ‘VVilla St.Leonards,” declared: “ Whereas I am desirous that.my niece, JennieJoseph, should participate and have an- equal .one-third share- iivthe* said provision, I do therefore give and devise to my said niece.Jennie Joseph, an equal- share and interest in the . aforesaid houseand rent thereof, and. desire that * the. bequest should.be subjectto* the same condition: and provision as are made applicable to th'eother'two devisees.”. r
t This, puts Jennie Joseph in the same position as Maria Wendt-.andL, M-,Maartensz, and gives her a one-third share of* the rent of “ VillaSt. Leonards.” Now Jennie Joseph died childless on. September 6,.1919. It will be noticed that under clause 5 of. the will the trustis..to last till the death of the three beneficiaries, there, called the” life-renters,” and the property is then to be sold and the.proceedsdistributed among the “ residuary legatees.” The present difficultyarises from the' fact that the will does not contain any specialprovision, applicable, to the distribution of. the renj^ ..fromthe. date of .death – of. Jennie Joseph till the termination of thetrust.
Xt would appear that, the .trustees,-on the assumption that thetwo surviving beneficiaries—^Maria .Wendt-, and L. M. Maartensz—are entitled to. the entire rent, have hitherto paid it to them,while the appellants contend that they are entitled to one-thirdshare of the rent among them. The whole controversy turnson the .question whether the bequest is.'a joint bequest’to all, or aseparate bequest of one-third share to each? The principal ofjus aaccresceniiy which the District Judge in the order under appealrelies on, can only apply in the former case, but not in the latter.The * provision in the will is not, for'instance, to pay the rent toMaria Wendt and L. M. Maartensz in equal shares. It*is on thecontrary to pay one-half to Maria Wendt “ during her lifetimefor lier maintenance,” and to apply the other half “ towards themaintenance, education, and advancement in life ” of L. M. Maar-tensz. The purposes are different in each case, and^n the lattercaie the rent is not even to be paid to the legatee, but to be appliedby the trustees themselves for the object specified. It'is clear tomy mind that this is not a joint bequest; there is nothing toqualify it by reference to survivorship, and there is therefore noroom for the operation of jus accrescendi. There is no alterationin the nature of the bequest when Jennie Joseph was by the codiciladded as a legatee. The codicil had only the effect of making therent divisible into three parts instead of two parts. It is hardlynecessary to discuss the authorities cited on behalf of the respond-ents because they refer to cases in which the Bequest' is joint and
( . 485 )
not separate. Mr., Hadley pressed upon our attention* the followingpassage hi WUUams on Executors (10th etl,)t vol. 2i p. 1208:—. djs
" Where, however, words, which according to the ordinary rule,constitute a tenancy in common are combined with, orfollowed 'by, others which would make a tenancy in 'common*inconsistent with the manifest design or the subsequentbequest of the testator, they may be taken to indicate,not the nature, but the proportion of the interest euehparty is to take.*’
He referred to,the concluding words in clause th ” Apioqg those1 have hereinafter.appointed the* residuary legatees, of tins will,”as indicative of such a manifest design or subsequent.:bequest.But this-, is quite insufficient. The* residuary- legatees, as will heseen, are a large , class, and not merely Maria Wendt and L. M.Maartensz,. and. include the petitioners, appellants, themselves.
I therefore think the share of Jennie Joseph did not accrue to theother two legatees, but that its destination, must be determined byother considerations. This brings, us to clause Softhe will whichthe,.testator himself intended as a residuary clause, and which-infact amounts to such. It is as follows:—. *
” I desire that my debts be paid by sale of the- real aiul personalproperty not herein specially bequeathed, and the balanceproceeds be equally divided among my brothers andsisters free from the control of the husbands of any ofthem (the children of a deceased brother or sister takingamongst them the share of their deceased parent), andamong Maria Wendt, 'Isabel Louise Maartensz, And LewisMathew Maartensz, all of whom I appoint residuarylegatees of this will.”
In my opinion one-third of the rent which would have beenpayable to Jennie Joseph, if living, fell into the residue, upon herdeath and became divisible among the residuary legatees mentionedin this clause. The appellants in appeal No. 64 are the children ofa sister, and are within the circle of the residuary legatees, and bothsets of appellants are entitled to shares in the rent in question.There is one curious feature in the case which need not, however,trouble us at the present moment. In the conclusion of clause aof the will the trustees are directed to sell the trust property afterthe death of Maria Wendt and L. M. Maartensz, and to distributethe proceeds “ among those I have hereinafter appointed theresiduary legatees of this will,” and yet undev clause '8 MariaVendt and L.' M. Maartensz are themselves nominated among theresiduary legatees.
This is illustrative of the want of care with which the will hasbeen drafted, but the intention of the testator is quite clear inregard to the point we are considering.
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We are not in a position to allot to the various appellants theprecise shares to which they are respectively entitled. For thispurpose the case should go back to the District Court. I wouldallow the appeals and send the case back for further proceedings.Each party should bear its own costs in the District Court and inthis Court.
By the fifth clause of his will the testator devised two houses“ in trust ” to the executor and trustee of his will. As regardsone of these houses, called ** Villa St. Leonards/' lie directed asfollows:—“ To pay and apply the rents, after deduction for taxesand repairs, as follows: One-half of such rent to my sister-in-law.Maria Weudt, during her life for her maintenance, and to apply theother half of such rent towards the maintenance, education, andadvancement in life of my nephew, Lewis Mathew Maartensz, whohas been under my care and protection for the last* seven years.I empower my executor, if need be, to apply half the value of ’ VillaSt. Leonards’ towards the education and advancement in life ofthe said Lewis Mathew Maartensz/' Pour years after the executionof his will, he made a codicil in which he said:
“ Whereas by the aforesaid will T made provision that* the rentof my house 4 Villa St. Leonards ' should be apportionedby the executor and paid to and for the benefit of MariaWendb and Lewis Mathew Mnartensz, and whereas I amdesirous that my niece, Jennie Joseph, should participateand have an equal one-third share in the said provision,I do therefore give and devise to my said niece. JennieJoseph, an equal share, right, and interest in the aforesaidhouse and rent thereof, and desire that the bequest shouldbe subject to the same condition and provision as aremade applicable to the other two devisees/’
The undoubted effect of the will and codicil was to give thethree beneficiaries an equal one-third share pf the vents. Sincethe death of the testator and up to the death of Jennie Joseph inSeptember, 1019, the rents were divided equally between thethree beneficiaries, but, after the death of Jennie Joseph, the thenfunctioning trustees divided the rents equally between the twosurviving beneficiaries. But recently certain persons claimed tobe entitled to the one-third share of the rents which had beenbequeathed to Jennie Joseph. On appeal we were invited toregard these proceedings as an application by the trustees fordirection from the Court as to the administration of this one-thirdshare of the rents. Two questions arise for consideration:First.
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whether the two surviving beneficiaries became eutitled to thisshare of the rents upon the death of Jennie Joseph; secondly, ifthey did not, whether the persons who take under the eighth clause ofthe will as residuary legutees, or the- intestate heirs of the deceasedtestator, became entitled to this share. Parts of the will are veryobscurely worded, but I Lave no hesitation whatever in comingto the conclusion that the two surviving beneficiaries as such arenot eutitled to the share in question. They con only claim it onthe ground that the legacy is a joint legacy, and not a legacy of aspecific share to each one of them. The language of the clausemakes it abundantly clear that the bequest is not of the whole tothe three beneficiaries, but of a defined share to each of them. Asregards the one-third share of the rents given to Maria Wendt andto Jennie Joseph, the testator directed the payment of that shareto each of them during her lifetime, but as regards the share givento Lewis Mathew Maurtensz, the executor was directed not topay, but to apply it towards his maintenance, education, andadvancement in life. While, therefore, the share of the rentspayable to Maria Wendt and Jennie Joseph is described as fortheir maintenance and for the term of their life, the share given toLewis Mathew Maartensz was not only for his maintenance, buteducation and advancement in life, and it is to be noticed thatthere are no express words showing that this was to continueduring the whole of the lifetime of this beneficiary. I am inclinedto take the view that the testator did not include Lewis MathewMaartensz • within the term 41 life-renters ** at the end of this clausewhere he provides for the termination of the trust and the distri-bution of the proceeds. There is another reason which leads meto the conclusion that it was not a joint legacy to the three bene-ficiaries. In the same clause of the will and immediately precedingthis bequest, he made provision for the payment of the rent*arising from the house “ St. Leonards " He directed as follows:-—
“ In trust to rent the same, and, after deducting from such rent apercentage to pay taxes and repairs, to pay the balance rent tomy sisters or the survivors or survivor of them for their maintenanceduring their lives." The language of this clause is in strongcontrast to the language of the bequest under consideration. Thebequest to the sisters was to them -as a class, and the language isiclear that upon the death of one or more of them the survivors or: survivor were to succeed to the share of the deceasing sister ort sisters. I would accordingly hold that upon the death of Jennie-Joseph the surviving beneficiaries did not become entitled to herrshare of the rents.
There remains to be considered the question whether the share>of rents in dispute falls within the provisions of the eighth clauselof the will, or is payable to the heirs of the intestate estate. 1 was
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at first inclined to take the view that it should go to the intestateheirs. The eighth clause of the will is as follows:—
,L_ “ I desire that my debts be paid by sale of the real and personal
Joseph v.property not herein specially bequeathed, and the balance
WenZ " proceeds be equally divided among my brothers andsisters free from the control of the husbands of any ofthem (the children of a deceased brother or sister takingamongst them the share of their deceased parent), andamong Maria Wendt, Isabel Louise Maartensz, and LewisMathew Maartensz, all of whom I appoint residuary legateesof this will.”
It seems to me that this clause is confined to the balance saleproceeds of the ‘‘personal and real property,” referred to in thatclause, and that it is not- a residuary clause applicable generallyto all the residuary property of the testator. But my brotherT)e Samipayo is in favour of the. view that this share of the rentsin ■ question comes within the clause, and that the words ” all ofwhom I appoint residuary legatees .of this will ” at the closeof 'that clause are sufficient to include the rents in question. Iwould accept his construction of clause 8, and agree in holdingwith him that.the share of the rents in question are payable to thepersons named in that clause. The trustees should, therefore, paythis share of the rents to those persons. For the purpose ofascertaining, who those persons are, the record will be remitted tothe lower Court.
In the circumstances: I think .the order should be that each parti-should bear its own costs in both Courts.
Set aside and sent back.
JOSEPH et al. v. MARIA WANDT et al