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Present; Lascelles C.J. and Pereira JLIVERA et al. v. G-UNARATNA.
165—D. G. Galle, 11,673.
pidei commissum—Legacy subject to a fidei commissum-—Legatee dying
before testator—Legacy does not lapse.
Where a testator devised a parcel of land “ as a legacy *' to hisson C, prohibiting him from “ selling, mortgaging, or otherwisedisposing of the same, or from giving it as a legacy to any strangeror out of bis lineage,"—
Held, that the disposition created a fide# commissum in respectof the property in the hands of G in favour of the 41 lineage ” of thetestator. On the death of C before the testator, M, who was thefirst in the lineage of the testator in the direct line of descent fromC, was* held entitled to the property.
Gnder the Roman-Dutch law a fidei commissum with which alegacy was burdened did not lapse by the death of the immediatelegatee before the testator.
Per Pereira ,J.—In the rule of the Roman-Dutch law that a fideicommissum ended by the death of the fiduciary heir before the deathof the testator, the term 44 heir " had reference to the 44 testamen-tary heir " of that law, in whom was vested, inter alia, the right,duties, and responsibilities of the executor of our time. The rulehas no place where property is devised by a will of our time to adevisee subject to a fidei commissum, although the devisee be a person •who would have been an heir in intestacy but for the will.fJJ HE facts are set out in the judgement of Lascelles C.J.
W. Jayewardene (with him Samarawickreme), for the plaintiffs,appellants.—On the death of Cornells the legacy lapsed, and hisshare fell into the residue. The share went to Frederick and George,subject to a fidei commissum, under clauses 21 and 23. Frederickand George died only in 1904 and 1906, and the defendant has nottherefore gained a title by prescription.
if legacy lapsed, it did not go to Frederick and George as inintestacy. Even a specific bequest falls into the residue. 2 Simon'sNew Reports 129. The residue was subject to a fidei commissumunder the will.
The fidei commissum was binding at least for four generations.As Cornells died during the lifetime of the testator, Mary succeeded towhat would have been her father’s share. She was only a fiduciaryheir, and her children were not prejudiced by the possession of anyone during Mary's lifetime. Mary held the property subject to therestrictions which were imposed on Comelis. Voet 36, 1, 69. Theprohibition against an alienation is a real prohibition, and not apersonal prohibition. MacGregor's Voet 67, 74.m——j v n
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1914. Counsel cited Morice 307 ; 2 Burge 112, 11b ; Sande's Restraint$on Alienation 218, 219 ; 2 Walter Pereira 447 ; 15 N. L. R. 323 ; 16N. L. R. 6 ; 14 N. L. R. 493 ; at p. 469 ; 17 N. L. R. 129, 133 ;
3 A. C. R. 139; 7 N. L. R. 43, at p, 49; Jarman on Wills 1047;
Bawa, K*C>. (with him Bartholomeusz), for the defendant, respond-ent!.—If the legacy lapsed the death of! Cornells, it went byintestacy to Frederick and George, and it was not subject to fideicommksum. Prescription, therefore, ran from 1888 in favour of thedefendant.
The; prohibition against alienation is a personal prohibitionbinding on Cornelis, and did not bind Mary. McGregor 71, Voet36, 1,27, 2 Burge 112.
Counsel cited 2 Burge 109, 3 Nathan 1875. 3 Bal. 74, 15 N. L.R. 323.
Jayewardene, in reply.
vCar. adv. vulL
.July 17, 1914. Lascelles C..J.—
This is an action in which the plaintiffs claim a 'field called Amba-gahawilakumbura under the will of their great-grandfather PetrusDias Abeysinghe.. The case went to trial on a statement of admittedfacts in the following terms : —
*’ Admitted that Petrus Dias Abeysinglie was entitled to thisproperty; that he died in December, 1881, leaving thelast will in question ; admitted probate in D. C. Galle,2,765, Testamentary. He had three children, Cornells,Fredrick, and George. Cornelis predeceased Petrus,leaving a daughter—his wife having predeceased—Mary, married to Richard de Livera in 1881. Plaintiffsare their surviving children. Mary died in 1912, andRichard de Livera about eleven years ago. Frederickdied about 1904, leaving a widow, and no issue. Georgedied in 1906 unmarried, and without issue and withouta will. Richard de Livera, by his attorney in 1888,purported to sell the property to defendant, and defend-ant has had possession since. Damages agreed upon atRs. 80 per year/*
The title of the defendant rests entirely on prescription, inasmuchas his deed from Richard de Livera passed no legal title to him.If, however, the property in the hands of Frederick, George, or Mary,or any one of them, was subject to a fidei commissum, no questionof prescription would arise, as the period of prescription would notbegin to run against the plaintiffs until the respective deaths ofthese fiduciarii in 1904, 1906, and 1912. (Vide section 8 of Ordi-nance No. 22 of 1871.)
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It is therefore essential to the appellant's case to show that theproperty devolved on Mary as fiduciarius and not as absolute owner.
The question depends to some extent on the construction of thewill of Petrus Dias Abeysinghe. The first twelve clauses of thewill contain bequests of money, dwelling houses, and gardens infavour of charities or of servants and friends. Then comes thedevise of Ambagahawilakumbura (the property in dispute) toCornells. It is in the following terms: —
“ I, the testator, give and bequeath as a legacy to my eldestson, Cornehs Jacob Dias Abeysinghe, Muhandiramof Galle Kachcheri, the field Ambagahawilakumbura,belonging to me, and situated in the village Akmimana.”
Clauses 14 and 15 contain devises of fields to Frederick and George1 espectively. In these three clauses the devises are made in thesame form. The devises are absolute, and unaccompanied by anyrestriction or condition.
Clauses 17, 18, and 19 contain the dispositions with regard to theproperty which the testator inherited from His parents, his maternaluncles and aunt, and from his first wife. The testator’s widow wasgiven half of the dwelling house Orphoowawatta, together with halfof the garden Mawattewatta and certain fields, to be possessed byher during the natural life in trust for my three sons hereinbefore
named and after the death of my said second wife the
said legacy to revert to them free of all encumbrances.”
By clause 20 the other half of the house and garden undisposedof by clause 19 was given and bequeathed to the three sons “to bepossessed by them as hereinafter mentioned.”
The nature of the interest of the three sons in the dwelling houseand garden Orphoowawatta and the garden Mawattewatta isdefined by clause 20. which is as follows: —
“ I, the testator, will and desire, when my three sons aforesaidbecome absolutely entitled to my dwelling house andgarden Orphoowawatta surrounded by the wall and thegarden Mawattewatta, that they and their posterity areat liberty to possess and enjoy the same for ever, butthey and their heirs are respectively restricted fromselling, mortgaging, or otherwise alienating the same,and the same I hereby entail as a fidei commissum.”
Here we have a complete fidei commissum created as regards thehouse and garden, the intention being that the restraint on alienationshould last .for the full period allowed by law, that is, for fourgenerations, the will having been made before the Ordinance No. 11of 1876.
Clause 21 contains a residuary gift to the three sons in equalshares.
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1914. Clauses 22 and 23 are as follows: —
“ 22. Should any of my said three sons die without issue, I willand desire that their widows who may survive themshall be at liberty to possess the entailed and all theot&er landed property which they may inherit from myestate with the restrictions hereinbefqje set forth inproportion to their respective shares, and that aftertheir respective deaths the 6ame to revert to my childrenin their legitimate issue upon the like restrictions ashereinbefore entailed.
44 23. I, the testator, do hereby restrict my three sons fromselling, mortgaging, or otherwise disposing of any landedproperty which they shall inherit from my estate orgiven to them by me as a legacy to any stranger or outof my lineage.’*
Thus, we find in the will two clauses creating fidei commissd ofdifferent degrees of stringency. Clause 20 deals with the testator'sdwelling house and garden, with property, that is to say, which thetestator was particularly anxious should remain in his family. Withregard to this, there is a fidei commissum binding on the sons andtheir posterity for the full period allowed by law. It was clearlythe wish of the testator that this property should be kept in the .family for as long as possible.
Clause 23 creates a fidei commissum of a move limited character.The three sons are restricted from alienating “to a stranger or notof my lineage any landed property which they shall inherit frommy estate or give (sic) to them by me as a legacy." The restrictionis imposed on the sons, and does not extend to their children ordescendants. It is in the nature of a personal inhibition. Theinstitutes are personally charged with the duty of keeping theproperty in the family. Fidei commissa of this limited nature arerecognized by the Roman-Dutch law (vide Voet 36, 1, 27; Burge,1st ed., vol. II., p. 112).
The principal question is whether the share of Comelis lapsedand fell into the residue. If this be the case, this share wouldbe governed by clauses 21 and 23, and would go to George andFrederick subject to a fidei commissum. In this case the questionof prescription would not arise.
The present case appears to be the simple one of the bequest oflegacy subject to a fidei commissum. It appears to be clearRoman-Dutch law that, in the event of the legatee dying before thetestator, the legacy does not lapse (Voet 36, I, 69). Then thequestion arises whether Mary took the legacy subject to the samefidei commissum as that which was imposed on her father. Theanswer to this question, I think, is supplied by the terms of the will.The fidei commissum was applicable only to the testator’s three
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sons, and not to any of his more remote descendants. I am there-fore of opinion that the property in Mary's hand's was not burdenedwith a fidei commissum, and there is nothing to prevent prescriptionrunning in favour of the defendant against Mary's children.
I would dismiss the appeal, with costs.
I agree to dismiss the appeal with costs. The first question inthe case is whether, as regards the land in claim (Ambagahawila-kumbura), the will of Dias Abeysinghe created a fidei commissum infavour of the heir or heirs of Comelis Jacobus! The testator byhis will bequeathed " as a legacy " to Cornells Jacobus Ambagaha-wilakumbura, and prohibited him by selling, mortgaging, or other-wise disposing of the same, or from giving it as a legacy to anystranger or out of " his lineage "-(see paragraphs 13 and 23 of thewill). This disposition, in my opinion, created a fidei commissumin respect of Ambagahawilakumbura in the hands of ComelisJacobus in favour of the " lineage " of the testator. Mary, thedaughter of Comelis Jacobus, was the first in the lineage of thetestator in the direct line of descent from Cornelis Jacobus, and,therefore, she was the fidei commissary who would be entitled to theproperty on the death of Cornelis Jacobus.1
The next* question is whether by reason, of the death of CornellsJacobus before the testator the fidei commissum lapsed, and theproperty fell back into the estate of the testator. Now, it is ageneral rule of the Roman-Dutch law that a fidei commissum endedby the death of the fiduciary heir before the death of the testator(see V<m der Linden, Maasdorp trans., 66); but " heir " heremust not be taken as a mere devisee under a will of our time. Thereference is to the “ testamentary heir or heirs " under the Roman-Dutch law, in whom was vested, in the first instance, the entirety ofthe property of the testator, and to whom was committed the powerof carrying out his wishes and directions. In him was vested,inter alia, the rights, duties, and responsibilities of the executor ofour time, and* his presence was necessary to animate, so to say,testamentary dispositions. A devisee under a modern will, be hea total stranger to the testator or one who would but for the willbe his heir according to intestate succession, is more in the positionof a legatee under the Roman-Dutch law; and in the case of a fideicommissum with which a legacy is burdened, it does not lapse bythe death of the immediate legatee before the testator (Voet 36t 2*, 69;see MacGregor's trans. 149). In the present case there is nodifficulty in determining as to what the exact status of ComelisJacobus is, because the devise to him is in the will (see paragraph13) expressly called a legacy.
It has been argued that Mary took the property in questionsubject to the same fidei commissum as that to which it was subject
Liver a v.Gunaratna
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ill the hands of Cornelia, and Voet (3d, 1, 5) has been cited in supportof this contention. What Voet there says is:“ When a father has
burdened his phildren with a fidei commissum, and "the children ofthe first degree dietheir father’s lifetime, and the grand-
children succeed to them by common substitution and becometheir grandfather’s heirs, it is understood that they likewise takesubject to the fidei commi8su?n.,> The “ common substitution ” herespoken of by Voet is not the fidei commissary substitution, butwhat was commonly known as the eubstitutio vulgaris of the Roman-Dutch law, whereby a second heir was appointed to take the placeof the first appointed heir if the first appointed heir by reason ofhis death before the testator' or otherwise failed to be heir. Thepassage cited has no application whatever to the present case.For these reasons it is clear that the property in claim was notburdened with a fidei commissum in the hands of Mary, and therewas nothing to prevent the defendant from availing himself ofhis prescriptive possession as against her children, the plaintiffs.Anyway the answer to the only issue tried should be in the negative.
LIVERA et al. v. GUNARATNA