Present: Lascelles C.J. and Wood Renton J.SELEMBRAM et al. v. PERUMAL et al.242—D. C. Colombo, 32fill.
Pidei commissum—Direction that property be possessed by heirs inperpetuity—“ Heirs ” sufficient designation of party to be .benefited.
A testator bequeathed a house to his sisters Anna and Mariasubject to the condition “that they shall not sell; mortgage, orin any other manner alienate the said house and premises, butthat the same shall be always held and possessed by them andtheir heirs in perpetuity under the bond of fidei commissum *•*
Held, that a valid fidei commissum in favour of the heirs abintestato of Anna and Maria for the full period allowed by the law"Was created by the clause.
'J'HE facts are set out in the judgment.
J. Grenier (with him Drieberg), for plaintiffs, appellants.
De Bampayo, K.C. (with him Bawa, K.C., H. A. Jayewardene,E. W. Jayewardene, and A. St. V. Jayewardene), for defendants,respondents.
Cur. adv. vult.
November 22, 1912. Lascelles C.J.—
The question on which this aj>peal turns is whether a valid fideicommissum was created by the will of Gabriel Rodrigo Bastian Pulle,and if so, what was the extent of the fidei commissum, that is tosay, did the fidei commissum, assuming one to have been created,determine on the deaths of Anna and Maria, or did it continue tooperate in favour of the heirs of these persons for the full period offour generations ? The material words in the will are the following: —
** I give and devise unto my two sisters, Anna Rodrigo (widowof Philip Morais) and Maria Rodrigo, the house andpremises in which I ami now residing, together with allthe appurtenances thereunto belonging, marked No. 54,situated in 4th Cross street in the Pettah of Colombo,upon this condition, however, that they shall not sell,mortgage, or in any other manner alienate the said houseand premises, but that the same shall be always heldand-possessed by them and their heirs in perpetuity'under the bond of fidei commissum; and as regards mysaid two sisters, it is my wish that they should live. together amicably in the same house as they now do.”
C 7 )
We have been referred, amongst other authorities, to the casesof Tina v. Badris,1 Paterson v. Silva 3 (in which the correctness ofthe decision of the majority of the Court in the former casewas questioned by Clarence J.), Luskington v. Samarasinghe*Wijewardene v. Abdul Hamid* and Nugara v. Oonsal,* but in noneof the cases do we find a concurrence of all the conditions which arepresent in the devise now under consideration, namely, (1) theusual prohibition against alienation, (2) the expressed intention ofthe testator that the subject-matter of the devise should be “ held
and possessed under the bond of fidei commissure.," and
(S) the designation of the fidei commissarii as the “ heirs inperpetuity ” of the fiduciarii without the addition of any suchwords as “ executors, administrators, and assigns."
It is well settled that no particular formula of words is requiredto create a fidei commissum, and that the true test is the intentionof the testator as evinced by the language of the instrument. Herethe express reference to the “ bond of fidei commissum ” places theintention of the testator beyond speculation. It is declared inexpress terms. It is true that there may be cases where the testatorhas made an express declaration of his intention to create a fideicommissum, but 'his intention has been held to be incapable ofexecution for want of sufficient designation of the persons or classin whose favour the fidei commissum was intended to take effect.The South African case of Drew v. Executor of Drew 8 is an example.There the testators purported to " entail and burden with fideicommissum the inheritances forthcoming to our aforesaid childrenunder and by virtue of this will,” but it was held that thechildren took the bequest absolutely, as the will contained nogift over or mention of the persons who were to take after thechildren.
In the present case, after the prohibition against alienation, theclause in the will proceeds, “ but that the same shall be alwayiBheld and possessed by them and their heirs in perpetuity under thebond of fidei commissum."
Do these words contain a sufficient indication of the class in whosefavour the fidei commissum is created? The question is free fromthe difficulty which arises when the word “ 'heirs " is followed bythe words “ executors and administrators ” as in Nugara v. Oonsal,sor by the words “ and administrators ” as in Tina v. Badris.1
. We have to detehnine whether a devise, which satisfies all theother requirements of a fidei commissum, fails to operate as a fideicommissum, because the persons who are to take after the originalinstitutes are designated “ their heirs in perpetuity."
1 (1886) 18. C. C. 135.
3 (1887) 9 8. C. C. 33.
* (1897) UN. L. B.S95.
*(1909) IS N. L. B. 941.
(1911) 14 N. L. B. 301.
8 (1876) Buchanan’s Beports 903.
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Tn Paterson v. Silva1 a very similar question was discussed anddecided by Clarence J. The testator, by the third clause in thewill, after prohibiting his children from alienating the propertydevised to them, declared that “ they ” (i.e., the testator’s children)
“ shall possess and leave same to their heirs." Clarence J. was ofopinion that if that clause stood alone there could be no questionbut that the testator intended to create a fidei commissum. for thebenefit of the heirs of his respective children, “ meaning by ‘ heirs ’those persons who may be their heirs in ordinary parlance, that isto say, those persons who would be entitled to inherit their propertyunder an intestacy.”
This decision is a clear authority for the construction which seemsto me to accord with the natural meaning of the language employedby the testator, namely, that a fidei commissum was created infavour of the persons who, under the law of intestate succession,would be entitled to succeed to the property of the donees. Thewords “ in perpetuity ” plainly indicate the testator’s intentionthat the fidei commissum should endure for the benefit of thesepersons for the full period allowed by law.
I do not consider that- Tina v. Sadris 2 is an authority againstthis construction of the will, as the judgments of the majority ofthe Court, especially that of Fleming A.C.J., were considerablyinfluenced by the fact that the prohibition against alienationextended to the heirs and administrators of the original donee.
For the above reasons, I am of opinion that the will of GabrielBodrigo Bastian Pulle created, with reference to the house in question,a valid fidei commissum for the full period allowed by law in favourof the persons who under the law of intestate succession would beentitled to succeed respectively to Anna and Maria.
This finding will necessitate a further inquiry on the issue ofprescription in view of the proviso to section 3 of the OrdinanceNo. 22 of 1871.-
The case must, therefore, be remitted to the District Judge forfurther inquiry, on the footing that the property is subject to a fideicommissum of the nature which I have indicated. The appellantis entitled to the costs of his appeal from the eighth and ninthdefendants, and the other costs must be costs in the cause.
Wood Benton J.—
The material facts in this case are briefly these. The plaintiffs-appellants claim a declaration of title in themselves, and in thefirst, second, third, fourth, fifth, sixth, and seventh respondents,who having declined to be co-plaintiffs have been made defendantsin the action, to a house and premises described in a schedule tothe plaint, and the recovery of mesne profits and damages in lieu
2 (2885) 7 S. C. C'. 135.
i (2887) 9 S. C. C. 83.
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of current rent and profits till ejectment from the eighth and ninthdefendants-respondents, who are in possession of the property.The original owner of the property, Gabriel Bodrigo Bastian Pulle,by his last will No. 1,370 dated April 17, 1845, devised it to hissisters, Anna Bodrigo and Maria Bodrigo. The devise was madesubject to the following conditions:—
“ They shall not sell, mortgage, or in any otbier manneralienate the said house and premises, but the sameshall be always held and possessed by them and theirheirs in perpetuity under the bond of fidei commissum;and as regards my said two sisters, it is xpy wish that theyshould live together amicably in the same house as theynow do.”
The appellants and the first to seventh defendants-respondentsare the heirs of the devisees under this will. By deed No. 2,434dated September 16, 1856, Anna and Maria Bodrigo gifted theproperty in question to the granddaughter of the former—AgithaMorais—on the occasion of her marriage in community to DominguSilva Pulle, subject, however, to the condition imposed on thedevisees under the will. The property was sold by the Fiscal in1884 in execution against Domingu Silva Pulle, and has passed byvarious mesne conveyances to the eighth defendant-respondent,who has leased it to the ninth. Apart from the question of theeffect of the condition above quoted in Bastian Pulle’s will, theeighth defendant-respondent would admittedly have a prescriptivetitle to the property. An issue framed on this point at the trialhas been answered by the learned District Judge in his favour.I do not think, however, that we can deal with that question onthis appeal. Although the appellants’ counsel admitted in argumentat the trial that “ the eighth defendant and his predecessors in titlehad been in possession ut dominus since 1884,” he cannot have in-tended to concede thereby that that possession sufficed to extinguishall the interests arising under Bastian Pulle’s will—a concessionimmediately fatal to the appellants’ case and rendering any con-sideration of the meaning of the condition in the will superfluous.Nor do I think that we ought—as the respondents’ counsel invitedus—to take the allegations in the plaint and to try to see whetherthey afford material for upholding the finding of the learned DistrictJudge on the issue of prescription. The only issues that we ought,in my opinion, to consider on this appeal are the first, second, andtenth. They have been framed as follows
“ (1) Was a valid fidei commissum created by the will No. 1,370of April 17, 1845?
“ (2) Was a valid fidei commissum created by the gift deedNo. 2,434 of September 16, 1896?
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“ (10) Even if the will No. 1,870 created a valid fidei commiaaum,was the fidei commiaaum one in perpetuity or a fideidommisaum which lapsed ?n the death of Anna andMaria Rodrigo? ”
The District Judge answers issues (1) and (2) in the negative.On issue (10), he holds that, even if Bastian Pulle’s will did createa fidei commiaaum, that fidei commiaaum lapsed on the death ofAnna and Maria Rodrigo. On these findings, and the finding onthe issue of prescription, the learned District Judge dismissed theappellants* action.
It is unnecessary to consider the finding on issue (2), since, inmy opinion, issue (1) should be answered in the affirmative, and onissue (10) the decision should be that the fidei commiaaum createdby the will was one in perpetuity so far a<s the law allows.
The view of the learned District Judge on issue (1) may be statedthus. The will does not indicate with sufficient clearness the personsin whose favour the prohibition of alienation is introduced. Thecase of Tina v. Sadria 1 shows that the word " heirs ” is too vagueto create a valid fidei commiaaum, even if coupled with a prohibitionof alienation. The respondents’ counsel pointed out in this con-nection that in a later paragraph in the will Bastian Pulle describesMaria Rodrigo as his " heiress,” a term clearly meaning heiress bytestamentary succession. The ruling in Tina v. Sadria,x that a deedin favour of A and his heirs, without specifying who is to take theproperty on the death of the first grantee, created no fidei commiaaummerely by reason of a prohibition of alienation having been insertedin the deed, was that of Lawrie J. alone. Fleming A.C.J. decidedthe case on the ground that the word.” administrators,” coupledwith " heirs ” in the grant, made it impoissible to say that it was theclear intention of the donor to create a fidei commiaaum. Dias J.dissented, and held that a valid fidei commiaaum had been created.It is mainly in regard to the effect of isuch words in wills and grants,alleged to create fidei commiasat as " executors,” " administrators,”
■ and " assigns,” that Tina v. Sadria 1 has been supported by laterdecisions. (See Nugara v. Gonsal2 and authorities there collected.)The trend of more recent authority, as the learned District Judgehas himself shown, is against the ratio decidendi adopted by Lawrie J.(Paterson v. Silva,3 Wijewardene v. Abdul Hamid.4) But thelanguage of the condition that we have here to interpret differs sowidely from the language of the condition in Tina v. Sadris 1 asto make the decision of Lawrie J. in that case inapplicable, even ifit were more in accordance with the authorities than it is. Thewords “ in perpetuity ” and "under the bond of fidei commiaaum ’’leave no doubt in my mind that the testator intended to createa fidei commisaum, and I think that he has used language sufficiently
i (1866) 7 8. C. C. 136.3 (1887) 9 S. C. C. 33.
* (1911) 14 N. L. R. $01.4 (1909) 19 N. L. R. 841.
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apt for that purpose. The “ heirs ” indicated must be the heirsof the devisees ab intestato. In spite of the use of the term“ heiress ” in the will in the sense above indicated, the manifestintention of the testator that the property should be hept in thefamily shows that it was in favour of heirs ab intestate that thefidei commissum was created.
come now to issue (.10). The main point urged in favour of thecontention that the fidei commissum lapsed on the deaths of Annaand Maria Bodrigo was that they alone are expressly prohibitedfrom alienating the property. But the provisions that the propertyis to be “ always held and possessed ” by " the heirs ” “inperpetuity ” “ under the bond of fidei commissum- ’ ’ appear to meto show that the prohibition was meant to affect the heirs also.
would set aside the decree of the District Judge dismissing theappellants’ action, declare that will No. 1,370 dated April 17, 1845,created a valid fidei commissum in favour of heirs oh intestate ofAnna and Maria Bodrigo for the full period allowed by law, andsend the case back for trial and adjudication on that basis on theother issues. The eighth and ninth defendants-respondents shouldpay to the appellants their costs of this appeal. All other costsshould be costs in the cause.
SELEMBRAM et al v.PERUMAL et al