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MENDIS v. MOHIDEEN.
D. C.. Colombo. 13,506.
Spouses married in community—Joint will as to massed estate—Survivor to. succeed to the whole estate and alter death the estate to devolve on others—Husband dying, widow leases for a term of eight years—Death of widowbefore expiry of lease—Action by executor of the joint will against tenantfor rent due for use and occupation—Adiation of will by survivor—Rightof survivor to pass title to a bona fide purchaser.
Where two spouses whowere marriedincommunityof property made
a joint will granting tothe survivorofthem thewhole estate and
providing that after the death of the survivor it was to devolve oncertain persons, and wherethewidowsurvivingleaseda housefor
eight years and died whentherewereabout fiveyearsmore torun.
and where .the executor of the joint will sued the assignee of the lease-for rent due for nse and occupation,—
Held, that the plaintiff was not entitled to succeed without determina-tion of the issue whetherthe assigneeofthe leasewas a bond fide
purchaser or not.
Per Bonser. C.J.—In the cast- of a joint will, a survivor mayrepudiate it after the death of the first dying spouse and stand upon his-or her legal rights as the surviving member of the community.
If the survivor adiates thewill,he orshe is inequityat leastnot
entitled to act inconsistentlywiththat will. He cannotmake anew
will or dispose of. the property by gift, but the dominium over the share-belonging to the survivor continues to be in him. and he can pass titleto a bond fide purchaser.
WO spouses, Gabriel Fernando and Povoliana, who were marriedin community of property, made a joint will granting to the
survivor of them the whole estate, and after the death of the-survivor it wasto devolve on certain persons. Poroliana,
surviving her husband, let a house included in the estate to oneJuan on 13th August, 1896, for eight years. She died on 5tlrMarch. 1899. The lessee sublet it to defendant for three years fromApril. 1899. Probate was taken out on 5th June of 'the same year.
The executor of the joint will (Francisco Mendis) sued theassignee of Juan’s lease for rent due for use and occupation ofthe house since Poroliana’s death.
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1&02.. The issues framed by agreement were (1) whether Poroliana
flanupry 16. ^vag entitled only to a life interest in the houses; and (2) whether~ the defendant was liable for use and occupation.
The District Judge (Mr. J. H. de Saram) found as follows:–
“ The defendant had a defence to this action for use and occu-pation, but as one of the issues agreed to by his proctor, is, whetherPoroliana Mendis was entitled to only a life interest in the housesin question, the plaintiff must succeed if that issue is determinedin the affirmative.
“ It seems to me, upon reading clause 4 of the last will of GabrielFernando and Poroliana Mendis, that the survivor of them wasentitled only to a life interest. That was’ their intention, andthat is the plain meaning of clause 4. Poroliana Mendis survivedher husband. She is dead. The defendant is in possession undera lease executed by :her, which has been assigned to him. Theplaintiff, who is the executor of her last will, must succeed. 1answer the first issue in the affirmative, and give the plaintiffjudgment as claimed and costs.”
Defendant appealed. •
Van Langenherg, for appellant.—The joint will nowhere speci-fies the extent of the survivor's interest in the common estate.Provision is made only as to devolution of property after the deathof both spouses. In cases decided in the Cape it has been held that,where a mutual will has massed the joint estate and the survivorhas adiated and accepted benefits under the will and then transfersos mortgages the joint estate to a bond fide purchaser or mortgagee,the transfer or mortgage as to half the joint estate, i.e… the survivor'shalf, is valid and cannot be set aside by the legatees, who in such acase have a personal claim against the survivor for damages only.Juta’s Leading Case*. 121. In the present case, the widow adiatedthe will and granted the lease for a good consideration. Theexecutor cannot repudiate it, so as to injure the sub-lessee. Heis at least entitled to hold the half share of the widow, being a bondfide holder of her interest.
Pieris, for respondent.—The question is whether the lease isgood after the death of the widow. The lessee was in rightfulpossession up to her death, but since that event the executor isbound to collect rent for the benefit of the estate. The rent claimedis tantamount to damages for unlawful possession. The doctrineprevailing in the Cape has been carried much further than thelaw as understood in Ceylon.
Van Langenberg replied.
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16th January, 1902. Bonser, CJ.—
I think this appeal must succeed, and the action was miscon-ceived.
The facts of the case are shortly these. One Gabriel Fernandowas married in community of property to one Poroliana. and duringthe existence of the community became possessed of a house inColombo street, Kandy. The spouses made a joint will by whichthey left, amassed together, all t heir property, and provided thatthe survivor should enjoy the property during his or her life, andthat after the death of the survivor the property should be dividedamongst certain persons named. The husband died first. Thesurviving widow purported, after his death, to grant a lease ofthis property to one Juanis for eight years, leasing the whole ofthis house, not merely her share of it. She then died, and thepresent plaintiff in this action was the executor of the joint will,and he. having proved both wills, became the legal personalrepresentative of both spouses- Juanis sublet the premises for'three years to the defendant at an increased rent. The executorof the joint will hrought an action against the defendant for whathe called the use and occupation of these premises, and the DistrictJudge gave judgment accordingly.
It seems to me that in this he was wrong, and that the matter couldnot be disposed of in such a summary way. The question of jointwills is one involved in some obscurity. There is no doubt that asurvivor in the case of a joint will may repudiate that will after thedeath of the first dying spouse, and say that he or she will not bebound by it, and may refuse the benefits conferred by the willand stand upon his other legal rights as the surviving member ofthe community. It is also clear that if the survivor acceptsthe benefits given by that joint will and, what is called, adiate6the will, he or she is in equity at least not entitled to act inconsis-tently with that will. He cannot make a new will or dispose of theproperty by gift, but it has been held in certain cases by the CapeCourts that the dominium over the share belonging to the survivoris still in the survivor after the death, and that the survivor, isable to pass a title to bond fide purchaser. The person who takesno notice that the survivor is acting inconsistently with the willafter having accepted its benefits is not considered to be a bondfide purchaser, and any mortgage or conveyance is liable to be setaside on the ground of notice.
In the present case the question is not determined whether-the widow did adiate this will or, if. she did, whether the lesseewas a bond fide purchaser of t-he interest of (he widow, because
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January 16.Bowser, C. J.
it was argued for the defendant that he was entitled at allevents to be paid his interest in the share of the surviving widowin the terms granted by the lease. That would seem todepend on this question, whether 'he was a bond fide purchaseror not.
This question not having been considered or even raised in theCourt below, we think that the just course will be to leave theplaintiff if he thinks fit to institute further proceedings.
Wendt, J.—1 am of the same opinion.
MENDIS v. MOHIDEEN