1957Present : Weerasooriya, J., and Sausoni, J.SINNEPILLAIPODY, Appellant, and MUHAMADUTHAMBTet'al., RespondentsS. C. 602—D. G. Balticaloa, 53dlL
Fideicommissum by last will—-N'o personal be.iefit conferred on fiduciarius—Validity—
Trusts Ordinance (Cap. 72), s. .3 (a)..
There can bo a Jidcicottimission without any conferment of rights on thefiduciarius to enjoy the fruits and profits of tho fidcieommissary property.
A testatrix left a will dated 21st May 1002 appointing A—, one of herbrothers, as “ executor ” to look after her five lands and “ to collect tho incomederived from them and to hand them over ” to her child, who was 5 days oldwhen tho will was made. Tho will proceeded :—“ And so my brother A—shall accept these properties and tho child from this day until sho becomes amajor, and in tho meantime to tako tho income and to spend samo for theuso of the said child nccojding to his own wish reasonably, and to preservethe balanco income and tho properties and when tho child becomes major to'give t-heso as dowry to tho child and tho bridegroom …. Andif the child happens to die before this, tho said A— shall givo away theseproperties to my brothers or their heirs Tho testatrix died in 1902 and herchild died in 1904.
Held, that tho will created a valid fitlcicommissiun. According to tho will,tho oxecutor was tho fiduciarius, and tho fitlcicoininissarius was tho daughterof tho testntrix : in the event of the daughter’s death beforo sho attainedmajority, tho brothers of tho testatrix became fideiconintissarii,
A PPEAL from a. judgment of the District Court, Bafcticaloa.
JJ. j”. Perera, Q.O., with G. Jianganathan and 21. Shanmugalingarn,for the defendant-appellant.
J3. ]Yikrarndnuyalce, Q.G., with E. A. G. de Silva■ and 21. Rajeek,for the plaintiffs-respondents.
Cur. adv. vult.
April 4, 1957. Weerasooriva, J.—
I havo had the advantage of seeing the judgment prepared by mybrother Sansoni and I am in complete agreement with it. The factsand the material parts of the will arc set out in that judgment.
In mv opinion it is not possible to construe the will as creating a trust,as we were requested to do by Mr. Ferera. I havo como to this con-clusion because, while it is true that the executor, who is the immediatedevisee, is not given the beneficial enjoyment of the property, neither isit given to tho successive groups of beneficiaries as represented by thechild and her husband, and (in the event of tho child dying beforo hermarriage) tho brothers of the testator. On this point it is clear that,except in so far as it is provided that a portion of the income may boexpended for tho uso only of the child (and that too in tho discretion ofthe executor rind not as a matter of right in the child) the beneficialenjoyment of the properties is postponed to the point of time when thoproperties themselves will vest in the beneficiaries. There is, therefore,absent in this settlement a concurrent ownership of the legal title in theexecutor and of tho beneficial interest in the other persons, or in thosepersons jointly with tho executor, which according to tho definition inSection 3 (a) of the Trusts Ordinance (Cap. 72) is of the essence of a trust.
If a trust is excluded, the question is what was the intention of thotestator as far as can be gathered from tho (implied) prohibition againstalienation and the express designation of the persons to whom the pro-perties should go on the happening of the events contemplated. Aspointed out in Wijetunga v. Wijelunga, an important test to be appliedin considering whether a will or other instrument creates a fidei-commissum is whether any provision or stipulation expressed in it can beregarded as having been inserted for any purpose other than that of“inducing ” a fideicommissum. In the view I have already taken thisquestion must be answered in the negative in respect of the provisionsto which I havo just referred.
The further question, then, is whether we should hold that the intentionof tho testator to create a fideicommissum is frustrated because nopersonal benefit has been conferred on the executor as the fiduciary.
A somewhat similar question arose In De Sa-ram v. Kadi jar7- which cameup beforo a bench of five Judges. In that case the will contained aprovision that the fiduciaries should accumulate tho balance of theincomo and profits from the properties devised (after defraying expensesfor the subsistence and maintenance of their families) in a fund for thebenefit of the fideicommissaries. It was contended that the fact thattho fiduciaries did not havo tho whole of tho beneficial interest stood inthe way of tho construction of the instrument as creating a fideicom-missum. In dealing with this contention Hearno, J., observed that ifthe intention of the testator was to creato a fideicommissum the only wayof dealing with a clause which deprives tho fiduciary heirs of their bene-ficial interest, .and to that extent inconsistent with tho Roman Dutch
2 (1944) 45 JY. L. R. 2G5.
law conception of the position and rights of a fiduciary, would be toignore it. Wijoj'ewardone, J., was of tho same view and, alternatively,but without examining the matter in detail as has been clone by mybrothor Sansoni, he stated that ho did not see why such a provision aloneshould be a ground for holding that no fideicommissum was created.Keuneman, J., was of the opinion that the provision referred to shouldbe construed as merely expressing the wish of the testator regarding theuse of the income and profits which was not legally binding on thofiduciaries..
In the appeal subsequently tahen in the same case before the JudicialCommittee of the Privy Council from the decision of this Court, theirLordships expressed the opinion that the provision as rogards the useof the income and profits should be interpreted as being only of aprocatory nature and not legally binding on the fiduciaries.
’While the present case is somewhat different in that no part of thebeneficial interest falls to tho fiduciary, I think that the same constructioncan be applied to the provision in the will dealing with the income andprofits.
Por these and the other reasons stated in tho judgment of my brothorthe appeal should be dismissed with costs.
This appeal concerns the interpretation of the last will, dated 21stMay, 1902, of a woman named Patliumma. Having described five landsto which she was entitled she went on to say in it :—“ As I am at presentseriously ill and am at the point of death and as I am having the fiveproperties mentioned and a daughter 5 days old I do hereby appointas executor to this last will Moheideenbawa Ahamadulewepody, whois my brother and who looked after me when my mother died when I wasvery young, and who rendered evety assistance to me to purchase thefourth property, and who gave me dowry out of his own earnings, to lookafter this baby and adopt her, and also to look after, the said propertiesand to collect- the income derived from them and to hand them overto this child ”. Pausing there, it seems clear that the testator did notby these words give the dominium of the lands to the executor.
The will then proceeds :—“ And so my brother the said Aliamadulcvve-pody shall accept these properties and the child from this day until shebecomes a major, and in the meantime to give the produce of the secondand third properties for this year only to my husband M.A. Ahamadulewe-podj' for the purpose of the debt incurred by us, and to take the rest ofthe income and to spend same for the use of the said child according tohis own wish reasonably, and to preserve-the balance income and theproperties and when the child becomes a major to give these as dowry tothe child and the bridegroom This clause emphasises the limitedpowers which the executor was given in respect of these lands. He is
to accept them in the same way as a donee accepts a donation ; but asregards the income from them, he is enjoined to collect it and to accu-mulate it for the benefit of the child and her bridegroom when shomarried.
The only other provision in the will to which I need refer is that whichfollows the clause last quoted. It runs: “And if the child happens todie before this, the said Ahamadulovvejiody shall give avay these pro-perties to my brothers or their heirs Ho separate reference is madehere to the income, but presumably it was intended to follow' the lands,for the executor is not even in this eventuality given any share of it.
Pathumma died in 1902 and her child died in 1904. Pathumma wassurvived by' her four brothers, Mohideenbawa Ahamadulcvvc-jjody (theexecutor) who died in 1928, Mohamadu Thambv, Mecralebbepody andAdamlebbcpody.. Meeralebbc-pody died in 1924 leaving two children,who are the plaintiffs in this action, while Adamlebbepody is thedefendant.
The plaintiffs in their plaint pleaded that Pathumma devised the fivelands to her only' child with a condition that if the child died before shebecame a major the lands were to devolve on Patlmmma’s four brothers.The plaintiffs sued for a declaration of title to 1 /4th share of three of thelands on this basis. They pleaded that the defendant was in wrongfulpossession of the three lauds, and asked that he be ejected from them.
It is not clear what position the defendant adopted at the trial inregard to the interpretation of the will, but in his answer he denied almostevery averment in the plaint. Since this is an action rei vindicatio theplaintiffs were bound to establish their title to the £th share claimed bythem. Issues (1) and (2) framed at the trial raised the questions. whether the will created a fideicommissum in favour of the four brothers,and, if so, whether the plaintiffs are entitled to 1 /4th share of the lands.
The District Judge in a judgment which is not veiy helpful held thatthe will did create a fideicommissum. He gave the plaintiffs the reliefthey claimed, except in regard to ejectment as he found that thedefendant is a co-owner.
The defendant has appealed, and Mr. Perera for him Submitted thatthe will did not create a fideicommissum, but a trust, the trustee beingthe executor who was directed to hold the lands devised for a limitedpurpose and to use the income from them in a particular way. Hesubmitted that the child cannot, in any view of the matter, be considereda fiduciary, nor could even the executor, since the latter never had abeneficial interest in the property devised, while in a-fidcicoinmissum thereis a succession of full ownership passing from the fiduciary to the fidei-commissary.
Mr. Wiekrem aiuayako for the plaintiffs respondents conceded thattho child was not a fiduciary'. He contended, however, that the lastwill created a fideicommissum, the executor being the fiduciary', and the
fideieominissary being the daughter; in the event of the daughter’sdeath before she attained majority, Pathumma’s four brothers -would beBdci commissaries. He emphasised that the intention of the testatorwas the paramount consideration, and that her intention was to create afideieomroissum. He relied strongly on the South African case of Kemp’sEstate v. Me. Donald’s Trustee 1.
Now that was a case where a testator bequeathed property to trusteesto bo held by them in trust for his three sons and their issue. The sonswere to get their share of the income for life. The grand-sons whoattained majority wore to get their shares absolutely, while the grand-daughters were to get their share of the income for life, and after theirdeath their children who attained majority were to get their sharesabsolutely.'
Solomon, J. A., said that it was quite possible to discover the intentionof the testator without translating the English legal terms of the willinto the corresponding expressions of South African Law. He added :—“ Were it necessary to do this I think that we should have to speak ofthe trustees as fiduciary heirs or legatees and of Susannah (a grand-daughter) as a fideieonnnissary legatee. In doing so, however, we shouldbe using the terms fiduciary and fidcicoinmissary in a wider sense thanthey have hitherto been employed in any of our reported eases. Lorin these cases a fiduciary heir or legatee has invariably meant- a personwho himself had a beneficial interest-, usually a life interest, in the pro-perty bequeathc-d to him while the fideieonnnissary has been one in whomthe dominium of the property has ipso facto vested on t-he death of thefiduciary, or on the hapjiening of any other event which terminates therights of the fiduciary. In the present- case, however, the trustees haveno beneficial interests in the store dealt with in c-lauss 10 of the will,nor could the dominium ever have passed to Susannah. On principle,however, there seems to be no reason why a fiduciary should necessarilyhave any beneficial interest in the property bequeathed to him, nor doesthere appear to be- any reason why ho should not- be directed to convertthe property into money before handing it over to the fidcicoinmissary.So that it would be possible, in 1113'- opinion, to say that the trustees underthe will arc fiduciary heirs in whom the store vested on the death oftestator, and that they arc burdened with a fkleicornmissum to pay therents and profits as directed in the will, and after the death of the wifeof the testator to convert the store into money and dispose of it to thepersons indicated by the testator !!.
IWaasdorp, J.A., said :“ The mere circumstance that the testator
did not intend to confer any personal benefit upon the trustees docs notprevent their being treated legally and technically as fiduciary heirs .
limes, C.J., referring to the trustees in the will, said that they werevested with the legal ownership but- t-hat the testator never intended thatthey should have any beneficial interest—" they were instituted notto enjoy but administer the property ”. Ho then went on to say :—
“ A testamentary trust is in the phraseology of our law a ficloicommissum
» (13J-5) A. D. J01.
and a testamentary trustee may be regarded as covered by the termfiduciary. In modem practice ‘fiduciary’ is most “frequently usedto denote an heir or legatee who holds the bequeathed property nsowner and for his own benefit subject to its passing to fideicommissnriesupon the happening of a certain condition. But it does not follow thatthe element of personal benefit on the part of the first holder is essentialto tho condition of a fideicommissum or the character of a fiduciary.It was an element which (as distinct from the statutory right of deduction)was frequently absent in tho testamentary trusts of Civil Law. Andseeing the wide and comprehensive conception of such trusts entertainedby tho lawyers of Holland, one would expect Dutch practice to be evenmore elastic in this regard ”.
With regard to tbis last statement of the learned Chief J ustice, Mr. Frcrc-Siuith in his “ Manual of South African Trust Law ”, at p. 49, says ;—Diligent search has failed to disclose the uucitcd authority in supportof the Chief Justice’s statement in Kemjj’s ease (at p. 499), thatthe lawyers of Holland recognised a fiduciary administrator bare of per-sonal benefits ”. He adds :—“ Tho possibility of a fiduciary burdenedwith administrative duties, without having any rig]its of enjoyment forhimself, seems to have sprung from obiter dicta of de Villicrs C. J.,(afterwards Lord Villicrs) in Slrydom v. Strydom's Trustee (1S94) IIS. C. 423, which were based upon a mistranslation of D. 36. 2.26.1 ( re-cording what is called Papinian’s case). The interpretative error isattributed to Voefc. Reference to the passage in the Digest shows thatPapinian, who was one of tho greatest of Roman lawyers, if not thegreatest, was dealing directly with vesting, not administration ”.
Professor Xa da raja in his book “The Roman Dutch Law ofjITidei-commissum ” at pages 233—23S deals with tire fideicommissum purutnand the much more familiar fideicommissum conclitionale. I do nobthink it is necessary to go further into the character of the fideicommissumpurum as iro question of vesting arises on tlris appeal. But the termsof the will under consideration seem to me to create a fideicommissumeonditionale, an example of which is given by limes C. J. in his judgment.
If there is a bequest ” to A for the use and benefit of B, if and in easethe latter attained majority, in which case he is to receive interest untilthe age of 20 ami thereafter the capital; and in tiro event of B’s deathduring minority tire capital to another soir G, such a fideicommissumwould not be pure but conditional ”.
In Appendix (2) of Mr. Frere-Smith’s book, tho author reproduces anopinion of Professor Fischer of Leyden University on the question :
Cair the opinion that a trust in modern Romair-Dutch Law is to boregarded as a fideicommissum be srrpported by what .we know about thelaw and practice in respect to fkleicommissa in the ISth century Lawof Holland? Professor Fischer first deals with the fideicommissumpurum and saj-s that he has irot found any proof of the use of that fidci-commissum in the practice of that time and adds : “I think Xadarajais quite right, when he writes in his Romair-Dutch Law ofFideicommissa‘ It seems better to let that form of fideicommissum lie, buried and
forgotten as a historical curiosity relevant only as having played animportant part in the origin of fideicommissa and not to seek to reviveit byr identifying the trust with it’'
But Professor Fischer also deals with “ the fideicommissum prescribingthat the fiduciary shall restore to the fideicommissary not only the lidc-i-commissary property itself but also all its fruits and profitsRegarding this type of fideicommissnm lie says :—“ This form of fidei-commissum is not quite the same as the fideicommissum purum. Afideicommissum with a provision to restore all the fruits and profits tothe fideicommissary, and thus without any benefits for the fiduciary,is mentioned in Digcsta, 36.1 19 (IS) and recognised as part of the Roman-Dutch Daw by Van Zutphen S. v. Fideicoinmis, nr. 16, and by Voot AdPandectas, 36.1 .40. Voot. adds that such a provision may be implied,e.g., when the fideicommissum is created only to save a minor heir orlegatee from tricks of his intestate successors or from the administrationof an unacceptable guardian. It seems, however, that these fideicommissawere very uncommon in Holland, not only because Voet does notrefer to other authorities than Roman legal texts, but ehiefiy becausein the sources of the legal practice of Holland such fideicommissa cannotbe found. In the abovementionecl Observationes tumultuariae of VanBynkershoekI have not encountered one case of a fideicommissum wherethe fiduciary was not entitled to take for himself the fruits and profitsof the fideicommissary property during the time lie was in possession ofit. In 1S06 Van der Binden wrote in his Recht-sgeleerd, Praeticaal, enKoopmanshandbock :—‘ Further it is an incident of a fideicommissumthat so long as the fiduciary is entitled to hold the property he can takethe fruits ’. If there had been ail exception from this rule in general usein Holland, Van der Rinden would have said so. In conclusion, theview that in Holland, especially' during the eighteenth century, a fiduciarybecame an owner of fideicommissary property for one or more fidei-commissaries—not exceptionally under special arrangements to avoidan unacceptable guardian’s administration, but generally—cannot, asfar as I see, be supported by the sources of the eighteenth century lawof Holland
Mr. Perera pressed on us the submission that the judges in the SouthAfrican case were faced with the difficulty arising from the fact that theEnglish Daw of Trusts found no place in the law of South Africa, and thattheir decision sought tc give effect to the testator’s intention by fittingthe provisions of the will into the framework of a fideicommissum.There is much to be said for this view, but although that case seems tohave decided for the first time that there can be a fideicommissum with-out any rights of enjoyment, the opinion quoted supports the decision.Wo have not been referred to any local ease in which this particularquestion has been considered. I see no reason why', having regard to theterms of the will under consideration, we should not hold that it containsa valid fideicommissum. I would therefore dismiss this appeal withcosts.
SINNEPILLAIPODY, Appellant, and MUHAMADUTHAMBY et al., Respondents
1957Present : Weerasooriya, J., and Sausoni, J.SINNEPILLAIPODY, Appellant, and MUHAMADUTHAMBTet'al., RespondentsS. C. 602—D. G. Balticaloa, 53dlL