ARCHBISHOP OF COLOMBO,Appellant ,and DON ALEXANDER Respondent

027-NLR-NLR-V-54-ARCHBISHOP-OF-COLOMBOAppellant-and-DON-ALEXANDER-Respondent.pdf

130
Archbishop of Colombo v. Don Alexander
1952Present: Gratiaen J. and Pnlle J.ARCHBISHOP OP COLOMBO, Appellant, and DONALEXANDER, RespondentS. C. 168.—.D. G. Colombo, 4,4831,
Fideicommissum by urill—Multiplex fideicommissum—Perpetual ■ suocession—Jus
acerescendi—Will—Subsequent codicil—Interpretation.
Clause 21 of a last will of 1807 was in. the following terms :—
“ The testator bequeaths beforehand to his three children …. andlikewise to the two children of the testator’s deceased daughter …. (theproperty is here described) …. with the wish that not only mustthe said portion of the garden and the paddy held remain unsold in order thatall his abovementioned children and grandchildren might enjoy the profitstherefrom …. but also if one of the said children or grandchildren ofthe testator should happen to die without leaving lawful descendants behind,then his or her share must devolve to the testator’s other children and grand-children who are alive ”.
Held, that even if the words created a fideicommissum, they providedfoe only one grade of fideicommissaries and did not create a multiplex- ftdei–eommissumr –
Per Gratiaeist J.—The clause did not create a valid fideicommissum. Thepresumption in favour of direct as opposed to fideicommissary substitutionwas not rebutted by the language of the will.
Quaere : Where a will was admitted to probate together with subsequentcodicils, is the absence of evidence of the contents of the QQdicils & bar to givingeffect to a particular clause of the will in a later action ?
GRATTAEN J.—Archbishop of Colombo v. Don Alexander
131
APPE AL from a judgment of the District Court, Colombo.
N. E. Weerasooria, Q.C., with G. T. Samarawickreme and VernonWijetunge, for the defendant appellant.
H. V. Perera, Q.O., with G. Thiagalingam, Q.O., and J. M. Jayamanne,for the plaintiff respondent.
Cur. adv. vult.
March 24, 1952. Gbattaen J.—
This is an appeal by the defendant, who is the Archbishop of Colombo,against a judgment of the Additional District Judge of Colombo declaringthe plaintiff entitled to an undivided £ share of certain premises inColombo hereafter described for convenience as “ the Madampitiyaproperty ”.
The plaintiff claimed undivided shares in the Madampitiya propertyas well as in certain other premises under a deed of purchase in his favourdated 3rd November, 1941. His claim against the defendant in respect ofthe other premises has been rejected by the learned trial Judge and doesnot arise for consideration on the present appeal.
Admittedly the defendant, and those under whom he claims, hadcontinuously possessed the entirety of the Madampitiya -property utdominus for over half a century, and under normal circumstances theplaintiff’s claim would for this reason be barred by the provisions ofsection 3 of the Prescription Ordinance. He seeks, however, to defeatthis plea of prescription by tracing the legal title of his vendors to theprovisions of clause 21 of the “ last will and testament ” PI dated30th August, 1807, of a gentleman named Saviel Dias who thereby, in theplaintiff’s submission, created in respect of the Madampitiya property“ a valid fidei commisssum in ‘perpetual succession binding on (theimmediate devisees) and their descendants to the fourth degree ofsuccession .”
Mr. Weerasuriya concedes that if the plaintiff’s legal title is in factderived from clause 21 of the will PI and if the provisions of clause 21 didcreate a valid fidei commissum which was effectual under the Roman-Dutch Law for four generations, the defendant’s plea of prescription mustfail by a very short period of time. Mr. H. V. Perera admits, on the otherhand, that the plaintiff’s claim is very clearly barred by prescriptionunless a multiplex fidei commissum such as his client contends for had beencreated by clause 21. It therefore follows that the present appeal mustdepend upon the applicability and the proper interpretation of clause 21of the last will PI.
The defendant’s position may be summarised as follows —
that P 1 does not represent the complete testamentary instrument inrespect of which probate issued when Saviel Dias Pulle died in1811, because P 1 together with three subsequent codicils had beenadmitted to probate in testamentary action No. 1,804 of thisCourt; and that the plaintiff’s failure to prove the contents ofthose codicils makes it impossible for a Court of law to decide
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GRAT1AEN J.—Archbishop of Colombo v. Don Alexander
that Saviel Dias 5 final testamentary disposition of the Madam-pitiya property was exclusively contained in the provisions ofclause 21 of PI ;
that, in any event, clause 21 did not create a valid fidei commissumof any kind, and certainly not a mutliplex fidei commissum,effectual under the Roman-Dutch Law for four generations,such as is admittedly essential to combat the defendant’s pleaof prescription in these proceedings..
With regard to the first of these contentions, it is manifest, upon anexamination of the proceedings in the testamentary proceedings of 1811relating to Saviel Dias’ estate (P9), that after the execution of PI hehad executed as many as three codicils two of which are now stated to bemissing. The third codicil, written in the Dutch language, was producedat the present trial without a translation as part of plaintiff’s case for thelimited purpose of identifying the earlier will P 1 by reference to certainmarkings on the documents concerned. In the result, the contents ofthe three codicils have not been proved even by secondary evidence.
In this state of the evidence, can it be said that the plaintiff hassatisfactorily established that clause 21 of the last will P 1 representsthe final testamentary disposition of Saviel Dias in respect of the Madam-pitiya property 1“ When a man leaves not one but several testamentary
writings, it is the aggregate or the nett result that constitutes his will, or,in other words, the expression of his testamentary wishes. The law,on a man’s death, finds out what are the instruments which express hislast will. If some extant writing be revoked or is inconsistent with a latertestamentary writing, it is discarded. But all that survives thisscrutiny forms part of the ultimate will or effective expression of bis -wishesabout his estate ”. Douglas-Menzies v. Umphelby x.
It is important to bear in mind that this action is concerned with theinvestigation of title to immovable property and not with a preliminaryapplication for probate in respect of an estate of which that property hadformed a part. Had this been the original testamentary proceedingwhere the later codicils were proved to be missing at the time of appli-cation for probate on behalf of Saviel Dias’ executors, it may well be thatthe Court would (in the absence of clear proof that the terms of PI hadbeen revoked or altered by a subsequent testamentary instrument) havebeen justified in admitting PI alone and in its entirety to probate.Hellier v. Hellier 2. For PI, at any rate at the time of its execution, didcompletely express the testamentary wishes of Saviel Dias, and theburden of proving that all or any of its provisions had been subsequentlyrevoked by a missing will or codicil would therefore have been on theparty who alleged “ a difference of disposition ”. Gutto v. Gilbert 3. AsWilliams J. declared in Dickinson v. Stidolp 4, “ a subsequent will (orcodicil) is no revocation of a former one if the contents of the subsequentwill (or codicil) are not known—the law is the same even if the laterwill expressly be found to be different from the former, provided it beunknoion in what the difference consists ”,
{1908) A.C.. 224.a 9 Moo. P. C. 131.
* (1884) 9 P, D. 237,* 11 C. B. (N. S.) 354.
GRATIAEN J.—Archbishop of Colombo v. Don Alexander
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To my mind, however, the present problem stands on an entirelydifferent footing. The stage of admitting the complete and finaltestamentary instrument of Saviel Idas to probate has long since passed,and all that we know is that probate had issued in 1811 on the basisthat the testator’s final wishes were expressed not in PI alone but in fourtestamentary writings of which PI forms only a part. As I understandthe problem of interpretation which is now before us, our duty is toascertain the comprehensive efFect of the judicial order for probate enteredin the testamentary proceedings in 1811, and I find it impossible, uponthe evidence before me, to say one way or the other whether the termsof clause 21 of PI were revoked, altered or left unaffected by thesubsequent codicils which had also been admitted to probate as expressionsof Saviel Dias’ testamentary intentions.-
As far as the present action is concerned, I take the view that the burdenwas on the plaintiff to prove that the Madampitiya property which formedpart of Saviel Dias’ estate had upon his death devolved on certainspecified devisees subject to the conditions laid down in clause 21 of PI.If we regard PI and the subsequent codicils, read together, as a singletestamentary instrument which had been admitted to probate I do not seehow the plaintiff could have succeeded except by proof, at least bysecondary evidence, that the missing parts of the “ aggregate or nettresult ” of the testamentary instruments admitted to probate did not alterthe provisions of clause 21 which, in the present state of the evidence,only reveals an incomplete picture. In the absence of such proof, Icannot conclude that clause 21 substantially expresses the final testamentaryintentions of Saviel Dias as to the devolution of the Madampitiya property.Vide Sugden v. Lord St. Leonards 1. If this be so, the plaintiff’s claimfails ab initio, but, should I be wrong in so deciding, I shall proceed to con-sider whether in any event the provisions of clause 21 can properly beconstrued as having created a multiplex fidei commissum.
Clause 21, on which the plaintiff relies, is in the following terms :—
“The testator bequeaths beforehand to his three children Maria Dias,wife of Philippu Brito, Anthony Dias and Nicholas Dias and likewiseto the two children of the testator’s deceased daughter Louisa Dias,named Prancisa Waniappu and Louisa Waniappu ….(the property is here described)…. with the wish that not only mustthe said portion of the garden and the paddy field remain unsold in orderthat all his above-mentioned children and grandchildren might enjoy theprofits therefrom, to wit:—a quarter each by the three first-named onesand one quarter by the two last named ones or one eighth of the wholeby each of the two, but also if one of the said children or grandchildrenof the testator should happen to die without leaving lawful descendantsbehind, then his or her share must devolve to the testator’s other childrenand grandchildren who are alive ”.'
The learned District Judge took the view that this clause created “ a validfidei commissum in favour of the lawful descendants of the devisees forthe full term allowed by law, that is, for four generations ”. Unfortu-nately, the grounds for this decision have not been fully elucidated,y 1875-6, L.R. 1 P, D, 154,
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GRATIAJEN J.—Archbishop of Colombo v. Don Alexander
The main submissions on behalf of the plaintiff in support of thejudgment under appeal "were (a) that the testamentary direction that theproperty must “ remain unsold ” amounted in this context to a real(as opposed to a personal) prohibition against alienation, indicating anintention that the property should never pass out of the family of theimmediate devisees and their lawful descendants ; and (b) that, inaccordance with the principles laid down by the Privy Council inTillekeratne v. Abeysekera1, there was a single bequest to five personsof a property which was intended, not expressly but by necessaryimplication, to be burdened with a fidei commissum in favour of a successiveseries of their descendants.
It is convenient at the outset to examine the general principles uponwhich a Court of law should approach the question whether anyparticular will creates a fidei commissum, and if so, whether such fideicommissum operates as a recurring or multiplex fidei commissum. Upona consideration of the authorities, the cardinal rules which govern everycase are to the following effect:—
the main duty of the Court is to ascertain the intention of the
testator as expressed in the instrument, and “ to this ride, allother canons of construction must give way Voet 36—1-72 ;Gordon Bay’s Estates v. Smuts et al. 2. (For this reason, “ adecision as to the construction of one instrument is not of muchassistance in construing another, the language of both not beingthe same ”) ;
in case of doubt or obscurity, that construction should be adopted
which imposes the least burden on the instituted heir ; when,therefore, a person is instituted as heir, a clear expression of thetestator’s intention is required to deprive him of or diminish hisrights as such heir, so that if other persons are mentionedin the instrument as heirs “ upon his death ”, the fair constructionis that they are to be substituted as his heirs only if the institutedheir predeceases the testator. Lint v. Zipp3. In other wordsthere is a recognised presumption in favour of direct and againstfidei commissary substitution whenever there is a reasonabledoubt as to the testator’s intention. (This does not mean,of course, that mere difficulty in ascertaining such intentionwould necessarily create such a doubt. Ex parte Zinn 4.)
even if the presumption in favour of direct substitution be removed
by a clear expression of the testator’s intention to that effect,the Court should incline to the view which imposes the leastburden or restrictions on alienations on the fidei commissarySubstitute, because there is an additional presumption,in the absence of a clear intention to the contrary, against amultiplex fidei commissum created for the benefit of succeedinggenerations. Nel v. Net’s Executors, 5 ; De Jager v. De Jager 6and Brits v. Hopkins on 7.
[1897) 2 N. L. B. 313 .* (1911) W. L. D. 7.
S A. [1923) A. D. at page 165.5 8 S. C. 189.
(1876) Buch. 181.6 25 S. C. 703 at page 712.
(1923) A. D. 492.
GRATIAEN' J.—Archbishop of Colombo v. Don Alexander
135
I now proceed to examine the language of clause 21 in the light of thesecardinal principles, and in doing so I am prepared to assume in favourof the plaintiff that the word “ wish ” which qualifies the'bequest to thetestator’s three children and two grandchildren connotes in its contextan imperative direction rather than a merely precatory exhortation.Moreover, the direction that the property should “ remain unsold ” does,in a sense, impose a real prohibition against alienation, hut only for thepurposes and to the extent indicated in clause 21. I find it impossible,however, to accept the further submission that these words either bythemselves or in relation to the rest of the language afford convincingevidence of an underlying intention to conserve the property perpetuallyfor the benefit of succeeding generations of the family concerned.Nadarajah on Fideicommisswm, page 104. On the contrary, the primaryobject of the prohibition is expressly to ensure the enjoyment of theprofits by the five persons named as devisees and no one else. Indeed,it is possible (although I need not so decide) that the direction against asale of the property was addressed merely to the executors of the willrequiring them to avoid, if possible, a sale in the course of administrationfor the payment of de&te which would thereby frustrate the “ pre-bequestFor the disposition “ beforehand ” in clause 21 is a " pre-bequest ” whichtakes priority over other dispositions. Steyn on Wills 61.
To pass on to the next submission urged on the plaintiff’s behalf, I amquite unable to agree that the words of clause 21 provide scope for theoperation of the jus accrescendi principle elucidated in Tillekeratne v.Bastian (supra). For in the joint will which was there interpreted“ the bequest was not in the form of a disposition of a share of the wholeto each of the institutes, but of a gift of the whole to the institutes jointly,with benefit of successor ship, and with substitution of their descendants ”.In the present case, by way of contrast, there is a clear disposition by thetestator of a specific share to each of the named institutes, indicatingvery clearly a separation of interests which immediately raises a pre-sumption against accrual. I find no indication in other parts of the willsufficient to negative this presumption—vide the authorities cited inNadarajah, p. 304 (Note 20).
There remain for consideration the words “ but also if one of the saidchildren or grandchildren should happen to die without leaving lawfuldescendants behind, then his or her share must devolve to the testator’sother children and grandchildren ”. This is the only passage in whichexpress reference is made to “ the lawful descendants ” of the devisees.The interpretation relied on by the defendant is that these words merelyprovide for the direct substitution of an heir should any particular deviseepredecease the testator—in which event the substituted heir would beeither a “ descendant ” (if alive) of the first-named institute or, shouldno such “ descendant ” be available to be substituted, the other namedinstitutes who are still alive. There is much to be said for this view.
I appreciate that grammatically the words “ should happen to die ” arenot necessarily limited in point of time, but the South African Courts,in construing similar words, have often applied the presumption in favourof direct as opposed to fideicommissary substitution. For instance, inLint v. Zipp (supra) a testator nominated his son to be his “ sole and
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GRATIAEN J.—Archbishop of Colombo v. Don Alexander
universal heir, and on his death his lawful descendants by representationDe Villiers C.J. held that, upon the son being alive to accept the inheri-tance, his descendants could not thereafter claim the property by rightof fideicommissary succession. Voet 28-6-3 and 36-1-28. In Van Wylc’sTrustee v. Van Wyk 13 8. G. 478 the -will under considerationcontained words very similar to the language of clause 21 withwhich we are now concerned. The testator directed that “ incase one of the shareholders should happen to die, his shareshall devolve upon his lawful heir ”. The Court decided that “ thewording was more appropriate to a predecease of the testator,or at the least doubtful ”, and the presumption against fideicommissarysubstitution was accordingly applied. Similarly, it was decided inex parte Bosch1 that the presumption in favour of direct substitutioncan only be displaced by indications in the will “ of so cogent a characteras to leave no real doubt in the mind of the Court ”. In other words,there must be “ a sufficiently clear balance of probability in favour offideicommissary substitution ”. It seems to me that this is the properapproach to a problem where the language of a will is found to becapable' of either construction—i.e., of direct or fideicommissarysubstitution. I therefore take the view that clause 21 did not createa valid fideicommissum, and that the testator intended the appropriateshares in the Madampitiya property to vest absolutely, and withoutfurther restrictions, in each institute (or his substitute, as the case maybe). Putting the matter at its very lowest, I am unable to say that thereis no real doubt upon the point, and the presumption in favour of directsubstitution must therefore prevail. Vide also Ex parte Kops and others 2.
I desire to state in conclusion that, even if it be legitimate to interpretthe words under consideration as creating a fidei commissum, the willunequivocally provides for only one grade of fidei commissaries. Thereis certainly no justification for holding that clause 21 creates “ a recurringor multiplex fidei commissum, circulating as it were throughout thefamily”. As Voet points out (36-1-28), “it must not be readilyassumed that the testator intended by means of several degrees of fidei-commissary substitution to burden for all time those who were includedin the family, and thus, contrary to the nature of ownership, to debarthem of the right of making an unfettered disposition of the propertythey had acquired ”. On this issue the case presents no difficulty tomy mind, and there is really no need for resorting to the presumptionagainst the creation of a multiplex fidei commissum. The will of SavielDias contains no words which are capable of the construction reliedon by the plaintiff.
It was suggested by Mr. Perera in the course of the argument that someof the members of Saviel Dias’ family bad in the course of their dealingswith each other acted upon the footing that clause 21 created a multiplexfidei commissum. I do not see how this circumstance can alter the truelegal position. Por the defendant and his predecessors have conti-nuously enjoyed the property on the basis of full ownership unfettered
by any restrictions.
* (1943) C, P. D. 369.
(1947) 1 S.A.L.R. 155.
1Zandiah v. Saraswathy
13?
For the reasons -which X have set out, I would allow the defendant’sappeal and order that a decree be entered dismissing the plaintiff’s actionwith costs both here and the court below. In the view which I have taken,the plaintiff’s cross-appeal necessarily fails, and must be dismissed.
Ptjuc,e J.—I agree that the appeal succeeds and that the cross appealmust be dismissed. I am quite satisfied for the reasons given by mybrother that clause 21 does not create a fideicommissum, in perpetuity.I must confess that I was impressed by the argument that the absence ofevidence of the contents of the codicils ought not to be a bar to givingeffect to clause 21 which forms part of a testamentary writing dulyadmitted to probate. Is one justified in speculating that one or otherof the codicils might have altered the clause in dispute ? If so, to whatextent may one assume that the clause was affected ? It appears tome that the proper approach to the problem is to look for evidence raisinga presumption of a partial or total revocation. If there be such evidence,the Court should refuse to give effect to the disposition relied on. I should,however, add that it is not necessary for deciding the present appeal toexpress a concluded opinion on this point.
Appeal allowed.