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Present: Garvin and Dalton JJ.
MOHAMED CASSIM v. MOHAMED HASSEN.
350—D C. Galle, 22,413.
Legacy—Properly begueathei partly disposed of—Tacit revocation.
Where a last will contained the following clause: "I do herebydirect that all the estate of my deceased brother …. beconveyed to his four children in accordance with his last will andtestament which wa3 duly proved in case No. 4,589. The halfshare of the immovables and all the movables given me by thatwill shall go to his two sons," and where it appeared that thetestator had disposed of a portion of the movables devisedto him under his brother's will.
Held, that the legacy must be regarded aB tacitly revoked tothe extent of the property disposed of.
HE plaintiffs are the two sons of one Ahamadu Lebbe. Thedefendant is the executor of Abdul Karim, who was a brother
of Ahamadu Lebbe. Ahamadu Lebbe died in 1916 leaving a willdated February 6, 1896, by which he appointed his brother AbdulKarim sole executor, bequeathing him also one-half of his immovableproperty and the whole of his movable property. On January '24,1922, Abdul Karim made a last will, and died on April 22 of the samevyear. By that will Abdul Karim made the following disposition: —
" I hereby direct that all the estate of my deceased brother•Ahamadu Lebbe, which is now being administered intestamentary case Ho. 4,589 of the District Court of Galle,be conveyed to his four children in accordance withhis last will …. The half share of the immov-ables given and all the movables given me by that willshall go to his two sons.”
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The plaintiffs sought to recover from the defendant the legacy towhich they were entitled under the last will of Abdul Karim, or inthe alternative the value of the legacy. The learned District Judgegave judgment for the plaintiffs.
E. W. Jayewardene, K. C, (with Garvin and Cassini Ismail), fordefendant, appellant.
Soertsz (with i?. L, Pereira and B. L. Bartholomensz), for plaintiffs,respondent.
April 12, 1927, Daltox J.—
The plaintiffs are two sons of one Ahamadu Lebbe; the first at thetime of the institution of the action, being in Singapore and'appearingby his attorney, Mohamed Salie; the second being a minor andappearing herein, by his next friend Mohamed Salie. Defendant isthe executor of Abdul Karim, who was a brother of Ahamadu Lebbeand an uncle of the plaintiffs.
Ahamadu Lebbe died in 1916 leaving a will dated February 6,1896; he left two sons, the plaintiffs, and three daughters. By thatwill he appointed his brother Abdul Karim sole executor, bequeath-ing also to him one-half of all his immovable property and the wholeof his movable property. The remaining half of his immovableproperty he left to his children who survived after they attained theage of 21 years. Abdul Karim filed an inventory (exhibit P 2)in D. C. (Testy.) 4,589, and the estate was closed in 1917. Theinventory shows the following .items material to this case: —
Then follow various sums due on numerous decrees and promissorynotes and other debts due to the estate of Ahamadu Lebbe.
Subsequently, Abdul Karim himself died childless in 1922 leavinga will dated January 24, 1922. aHis nephew, the present defendant,and Mohamed Salie were appointed executors, but Mohamed Salie issaid to have renounced probate. He was in fact an insolvent.
By that will Abdul Karim made the following disposition: —
*'1 do hereby direct that all the estate of my deceased brother
Abdul Kader Hadji Ahamadu Lebbe Marikar, which is nowbeing administered in testamentary case No, 4,589 of theDistrict Court of Galle, be conveyed to his four children in
Half share of cash……1,81128
Half share of goodsintheshop …1,10000
Amount in Mercantile Bankof India
Ltd., Galle… '' …7,931 82
Half share of amount due for as per
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accordance with his last will and testament which was dulyproved in the said case No. 4,589. The half share of theimmovables and aU the movables given me by that willshall go to his two sons.'*
There was a residuary bequest of all his property to his wife andto his nephews and nieces.
Basing their claim on this clause of the will of Abdul Karim, theplaintiffs ask that the defendant be ordered to deliver over to themthe movable property inventorized in the estate of Ahamadu Lebbe,or in the alternative that the sum of Rs. 31,489.08, the valueaccording to the inventory, be paid over to them.
They subsequently amended their claim and asked that defendantbe ordered to render an account of all moneys formerly belonging tothe estate of Ahamadu Lebbe which had come into his possession,that he assign to them all money decrees in favour of AhamaduLebbe and deliver to them or assign, os the case may be, nilpromissory notes, debts, and cboses in action belonging or due toAhamadu Lebbe, and that he deliver up all other movable propertythat formerly belonged to Ahamadu Lebbe and bequeathed to AbdulKarim. In default plaintiffs asked that he pay them the sum of
The claim of the plaintiffs, therefore, was for delivery of themoney and articles set out in the inventory (items 18-24) and forthe delivery or assignment of the decrees, promissory notes, anddebts set out therein.
After pleading that the action was misconceived and not main-tainable defendant answered that some of the movable property hadbeen disposed of by Abdul Karim, the cash and more had beenspent by Abdul Karim on account* of Ahamadu Lebbe’s estate andfamily, and that the promissory notes and other documents were inthe possession of the plaintiffs. He stated, however, he was preparedto assign any remaining decrees in favour of the plaintiffs.
After hearing evidence the learned Judge came to the conclusionthat the clause in Abdul Karim's will set out above showed a veryclear intention to bequeath to the plaintiffs all the estate of AhamaduLebbe left to him and as it existed at the time of Ahamadu Lebbe'sdeath, and he therefore directed that defendant do pay to them thesum of Rs. 31,489.08 claimed. He answered all issues save one infavour of the plaintiffs; the one issue which seems to me to be theonly really important issue in the case he held it was not necessaryto decide. That issue was as to what of the movable propertybequeathed by Ahamadu Lebbe to his brother Abdul Karim wasactually in existence at the date of Abdul Karim's death. It isurged on behalf of plaintiffs that whether it existed or not AbdulKarim’s executor had to hand it over or pay to them its value,and that trial Judge has upheld that contention.
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In the course of his argument on the appeal Mr. Pereira for theplaintiffs (respondents) agreed that he could not uphold the judg-ment to the extent to which the trial Judge had gone, but he urgedthat at any rate he was entitled to the four items—
amounting to Rs. 11,843.10.
When the evidence is examined, it will be found that there is notthe least attempt on behalf of the plaintiffs to show how much ofAhamadu Lebbe’s property bequeathed to Abdul Karim came intothe hands of Abdul Lebbe’s executor, or that any part of it existedat the time of Abdul Karim’s death. They rely purely and solelyupon the inventory P 2. The only witnesses called in support of theclaim are the first plaintiff and Salie, the next Mend of the secondplaintiff. The first admits he has failed in business, has warrantsout against him, and but for this case he would be in hiding, whilstthe second is an insolvent whose certificate was suspended for twoyears, and admits that the story he told in this case was not what hetold the court in his insolvency proceedings.
On the other hand, the defendant has given evidence purportingto show how Abdul Karim disposed of or dealt with the movablesand cash mentioned in the inventory P 2, none of which he sayscame into his hands. Both the first plaintiff and Salie were inAbdul Karim’s shop for at least twelve months, and then AbdulKarim apparently had to put the defendant in charge. There isevidence to show that the first plaintiff himself actually disposed ofthe buggy inventorized in P 2, whilst it would also appear that heand Salie took possession of the promissory notes they now claim.It is very difficult to accept first plaintiff’s uncorroborated’ state-ment that, on his father’s death the widow was left with cash to thevalue of Rs. 20,000. The evidence given' by defendant as to themaintenance of the widow by Abdul Karim and the education of thechildren is much more likely. The defendant further has not beendiscredited as has the first plaintiff.
The plaintiffs have entirely failed to show then that these fouritems 21-24 came into the defendant’s hands, or had any existenceat the time of Abdul Karim’s death. It is true that it has beenurged that, in view of the language of Abdul Karim’s will, there wasno such onus upon them, but I am quite unable to agree.
There is to my mind no difficulty in coining to the conclusion thatthe trial Judge was wrong in his conclusion; the only difficulty tomy mind being whether the common law or English law is applicable.
Gashin Bank, Galle…7,93182
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I am not satisfied that the common law is not applicable, but on thefacts here in either case the result mu6t in my opinion be the same.
The bequest by Ahamadu Lebbe to Abdul Karim is an absolutebequest without condition of part of his estate (bonorum). Toascertain the extent of that part it is conceded that it is necessary tolook at the amount of Ahamadu Lebbe's property at the time of hisdeath. It is for that purpose that the. inventory P 2 is required.His estate was closed in 1917. The bequest by Abdul Karim to theplaintiffs is a legacy of all the estate (bonorum) of Ahamadu Lebbeleft by the latter to Abdul Karim. When Abdul Karim bequeathsin 1922 tothe plaintiffs thatportionof the estate(bonorum)
inherited byhim from AhamaduLebbe,it is- equally necessary to
ascertain the extent of that property as at the death of the testator,i.e.t Abdul Karim, in the absence of any clearly expressed intentionof the testator to the contrary. (Voet Bk. XXX., 9.) What wasleft to Abdul Karim is easily ascertainable from P. 2. If thatproperty was in existence or could be satisfactorily traced on theprinciples laid down by Voet, and still remained the property ofAbdul Karim at his death, then it is left to the plaintiffs. A legacymay, however, be expressly or tacitly revoked. If the propertybequeathed perishes, or be disposed, of by the testator before hisdeath, or bedestroyed or alteredin sucha manner thatit can no
longer be regarded as the samething, then the legacyis tacitly
revoked. (Maasdorp’s Institutes Vol. I. p. 188; Voet Bk. XXX., 55;Grotius Bk. 2, c. XXIV., 28.) It is true that it is a principle of thecommon law that a testator may bequeath as a lagacy not onlyhis own property but also property belonging to others (cf. VoetBk. XXX., 26, and Receiver of Revenue, Pretoria v. Hanoke 1), but thisis not a case of such a bequest, because there is nothing to show thatAbdul Karim had any intention whatsoever to bequeath anythingbut what was his own.
The difference between English and the common law on thissubject of legacies appears to be due to the precise classification oflegacies in English law. Owing to the absence of that classificationin the common law there* would appear to be greater scope for reallyascertaining and following the intention of the testator, since it israther a question of the testator’s wish , than a matter of law (VoetBk. XXX., 55, and Morice English and Roman-putch Law, p. 302).The trial Judge has read into the will an intention on the part of thetestator Abdul Karim which cannot in my opinion on any reasoningbe found there. I am unable to agree further that there is anylegal evidence to justify a conclusion that the words of the clauseeither recognize the alleged generosity of Ahamadu Lebbe “ byreturning to the sons all that he had received from the father,” orthat they justify a conclusion that it was' “ a case of completerestoration.”
1 (1915) A. D. at p. 77.
No question has been raised as to whether rights; of action could orcould not pass under either bequest, having regard to the languageused in the wills; but in any case defendant raises no difficulty onthat point.
For the reasons given the plaintiffs’ case fails, and their actionshould have been dismissed with costs. The appeal is thereforeallowed with costs, the judgment of the trial Judge is set aside, andjudgment is entered for the defendant with costs.
Garvin J.—I agree.
MOHAMED CASSIM v. MOHAMED HASSEN