064-NLR-NLR-V-20-CADERAMEN-v.-ALLES-et-al.pdf
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1918.
Present: Bertram C.J. and Shaw J.CADERAMEN v. ALLES et al.140—D. G. Colombo, 46,380.
Intestate succession—Person dying intestate leaving one uncle on paternalside and six uncles and aunts on maternal side—Ordinance No. 15of 1876. s. 35.
A deceased intestate left him surviving seven uncles and auntsand their children:one uncle wasonthepaternal side,and six
uncles and aunts were on the maternal side.
Held, that the paternal unclegotonly one-seventhand not
one-half.
The words “ per stirpes ** in section 35 of the Matrimonial BightsOrdinance (No. 15 of 1876) governs only the words " children ofdeceased uncles and aunts, ” andnottheearlier phrase'* uncles
and aunts ” as well.
HJ^HE facts appear from the judgment.
Drieberg, for appellant.
Bawat K.G. (and Samarawickreme), for respondent.
Gut. adv. vult.
August 2, 1918. Bertram C.J.—
In this case Mr. Drieberg has raised a point which, though barelyarguable, is of some historic interest. The case under considerationis that of a deceased intestate who left neither descendants, norbrothers, nor sisters (nor their, issue), nor ascendants surviving, butonly uncles and aunts and their children. One of the uncles inquestion was on the paternal side; the other uncles and the aunts(six in number) were on the maternal side. Mr. Drieberg contendedthat the property in question should be divided equally betweenthe paternal and the maternal heirs. On this footing the paternaluncle would get one-half of the property; on the footing contendedfor by the other side he would get only one-seventh.
Mr. Drieberg bases this contention upon a sentence in section 35of the Matrimonial Rights and Inheritance Ordinance, No. 15 of1876: “ Afterwards to uncles and aunts and the children of deceaseduncles and aunts per stirpes.” He maintains that the words “ perstirpes ** govern the whole clause, that is to say, not only the phrase“ children of deceased uncles and aunts,” but also the earlierphrase uncles and aunts M as well; and that the meaning of “ uncles
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and aunts per stirpes ” is that one-hall should go to the paternaluncles and aunts (or their children), and one-hall to the maternaluncles and aunts (or their children).
The simple answer to this contention is that, i! this was whatwas intended by the Legislature, the expression which it would haveused would not have been “per stirpes” but “per lineas.” See VoetXXXVIII., 17, 2.—
Succeditur ab intestato vet in capita, vet in lineas, vet in stirpes
In capita successio fit, cum pro numero personarum succedeniium in
tolidem partes hereditas dividiturIn lineas, cum bona partim
patentee, partim matema lineas defuncti cedunt, licet dispar in utraque
tinea succedeniium numerus sitIn stirpes denique, cum iure
representation's succeditur; quod ius representations est fictio turn, quagradu remotiores subintrant in locum proximioris defuncti
See also Huber Pr&lect. Iuris Civilis) III., 9: —
Hi autem neque secundum capita, nee representations, bona partiuntur;Nulla enim hie stirpes sunt, qua jadunl representationem, Quomodoigitur? secundum lineas.
See also Van Gleef’s Case, reported in Vanderstraaten’s Reports,page xxvii: “ the succession takes place in three different mannersviz., by heads, branches, and lines. ” This consideration in itseliconcludes the point, but as the question is one ol some historicalinterest, it may be well to consider it historically.
For this purpose it is necessary to go back to the 118th Novelof Justinian, which is the foundation ol all schemes ol intestatesuccession in countries affected by the Boman law. This schemeof succession may best be understood if it is realized that its originallysimple principle, namely, the creation of three successive orders ofdescendants, ascendants, and collaterals, is modified by the inter-position of a fourth and intermediate order between the first andsecond, namely, that described in French law as the order of “ pri-vileged ascendants and collaterals, ” that is to say, the father, themother, brothers and sisters, and their issue. It is the develop-ment of the various points arising out of the constitution ol thisprivileged order which gives the only elements of complexity toJustinian’s scheme.
Up to this order ol the “ privileged ascendants and collaterals ”no question arises of any competition between the paternal andmaternal lines. No one has ever thought of making a distinctionbetween lather and mother for this purpose, and brothers andsisters and their issue, in the nature of the case, partake of bothlines. But when we come beyond this order to the ordinary ascend-ants, and after the ordinary ascendants to the ordinary collaterals,the question of the two lines arises. In some degree or otheralmost: all symtems of legislation recognize the principle that theinheritance should be split between the two lines, what is called in
1918.
Bertram C. J.
Oaderamen
v.AUes
( 310 )
1918,
Bebtram C. J
Caderamenv. Allta
French law la fente entre lee deux lignee. It was recognized by
. Justinian himself in the 118th Novel, so far as relates to the ascend-
ants. He provided that where the heirs entitled were grandparents(or ascendants of a remoter degree), half should go to the paternalancestors and half to the maternal, so that, if, for example, onlyone paternal grandparent survived but two maternal grandparents,then the single paternal grandparent would take half the inheritance.See {Corpus Juris Civilis, III.) Nov. CXVIII., 2; “ ex eequo inter60s hereditas dividitur ut medietatem quidem aocipiant omnes a patrcascendentes, quanticumqe fuerint, medietatem vero reliquam a matreascendentes, quantoscumque eos inveniri contigerit. ” But Justiniandid not carry this principle further than the ascendants; he did notapply it to collaterals.
In other systems founded upon Justinian’s, however, the principlehas been applied to the collaterals also, not as an extension ofJustinian’s rule, but by virtue of another principle which prevailedas part of the customary law of certain parts of Western Europe(comprising both France' and part of the Netherlands), namely,the principle expressed in the maxim “ paterna patemis, maternamaternis that is to say, that all the immovables which haddescended to the deceased by paternal inheritance should devolveupon the paternal line, and, similarly, all immovables whichhad descended by maternal inheritance should devolve upon thematernal line.
The inconveniences and restrictions of this rule led to the develop-ment of an alternative rule, viz., that the whole inheritance, whether ’consisting of movables or immovables, or of inherited or acquired .property, should be divided in equal halves, one going to the paternaland the other to the maternal line. This result was not attainedin France till after the French [Revolution in 1794, and it wasembodied in the Code Napoleon. In Holland, however, it wasattained in 1580,. and the Placaat of that year gave it formal shape(see Vander Linden, X., 1). It appears, however, that the inhabitantsof North Holland (who lived under a special customary law knownas the Aasdomsch Rech'. as distinguished from the Schependomsch-Recht which prevailed ir the South of Holland) had no such customas that expressed in the maxim “ paterna patemis, materna maternis,”and rejected the placaat of 1580, which gave expression to a develop-ment of that principle. To meet their views a new Placaat waspassed in 1599 recognizing their own customary law in the districtswhere it was previously observed, and making no distinction betweenthe paternal and the maternal lines.
During the Dutch occupation of the maritime districts of Ceylonthe question arose whether this Placaat of 1599 was in force inCeylon, or whether Ceylon was governed by the Placaat of 1580.The history of this question will be found in the Appendix toVanderstraaten’s Reports, pages i to xxxi and A to C. In 1822
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the Supreme Court, in a judgment drawn up by the Chief Justice,Sir Hardinge GifEard, came, to the conclusion that the Placaat of1599 was in force in the Colony. In 1871, under the presidency ofSir Edward Creasy, it came to a contrary conclusion. In 1876 (onlyfive years after this latter decision) our own law was codified by theMatrimonial Bights and Inheritance Ordinance, 1876. The questionis, which of the two views was the new codifying statute intendedto embody? Of that there can be no question. Our statute adoptsthe North Holland law, and follows closely the phraseology of thestatement of that law by Van der Linden, chapter X. There may beincidental points in which all the North Holland law is not incor-porated, but it is provided in section 40 that in all questions relatingto the distribution of the property of an intestate, if the Ordinanceis silent, the rules of the Roman-Dutch law as it prevailed in NorthHolland are to govern and be followed.
What, then, were the principles of the two contending systems oflaw iu this point? The law of South Holland is expressed in Article27 in the Placaat of 1580. See Vanderstraaten’s Reports, AppendixA, page xi : “ The goods of the deceased shall always devolveupon and be inherited by the relation on the father's and mother'sside of the deceased by dividing the same exactly into two, withoutreference or consideration whether the deceased's effects consistsin a greater or less proportion of what he inherited from his fatherand mother respectively."
The law of North Holland, on the other hand, repudiated thisdivision between the two lines altogether. It did not even adoptthe principle of Justinian that there should be a division as betweengrandparents or remoter ascendants. Section 35 of our Ordinanceexpresses the same repudiation. There is no division between thelines either as regards ascendants or as regards collaterals. Withregard to ascendants, this view is expressed; with regard to colla-terals, it is implied. If the view contended for by Mr. Drieberg werecorrect, we should have this extraordinary result, that in £ statuteobviously intending to adopt the law of North Holland the Legislatureexpressly repudiated the principle of the division between the twolines in the case of ascendants (where Justinian had adopted it),yet adopted it in the case of collaterals (where the law of NorthHolland had repudiated it). This clearly was not, and could nothave been, the intention of our law.
The appeal, therefore, in my opinion, should be dismissed, withcosts.
Shaw J.—I agree.
1918.
Bebtbam C. J.
Gaderamenv. AXUs
Appeal dismissed.