CARLINHAMY v. JUNAIS et al

027-NLR-NLR-V-26-CARLINHAMY-v.-JUNAIS-et-al.pdf


( 129 )
Present: Bertram C.J., Garvin J., and Javewardene A.J.CABLINAHAMT v. JUANIS et al.
1W.
377—D. C. Matara, 312.
B
Oift in favour of six ckU&ren subject to fidei commissum—Death of onechild—Jus accrescendi—Partition decree allotting one lot jointlyin favour of one family group—Deeree assigning rights to deceasedpersons—Bights of representatives of deceased person under the decree—Decree giving rights to wife of one defendant—Wife dead at thetime—The defendant married to another woman—Court not awareof second marriage—Construction of decree—Latent ambiguity—Evidence Ordinance, **. 94 and 96—Powers of Court in revision.
Per Bertram C.J. and Garvin J. (dissentients Javkwabdenk A.J.):ratne v. Abeysekere * tardier considered and defined.
Per Bertram C.J. and Garvin J, (dissenticnte Jayewabdene A.J.):That principle is not confined to testamentary fidei commissa.but applies equally to fidei commissa created by a deed inter vivos.
By the whole Coart:Wherea partition decree per incurious
allots interests to persons already dead, it most, unless set aside,be interpreted as allotting those interests to their representativesin interest.
Where a partition decree allots a particular lot to a familygroup, it is not necessarily to be presumed that they are to hold itin equal shares.
Per Bertram C.J. and Garvin J.: In interpreting a documentthe state of knowledge of the author of the document at the timeit was executed may be taken into account for the purpose ofdetermining whetherthe circumstancesofthecasedisclose a
latent ambiguity.
Sabo and his wife Nonno, who were entitled to a one-fourthshare of a land, gifted the same in 1875 to their six. children (firstto fourth defendantsand Babappu andDonsina,wifeof Mathes)
subject to certain conditions. The material parts of the deed ofgift were as follows:—Whereas we do deem it fit and proper toset apart something separate unto our six children for their welfareand advancement, we have gifted unto onr six children, in termsof the agreement appearing hereunder,thefollowingproperty:—
. . . . We shall have the rightto possess theabove
property and do ourpleasure therewith,andafterthedeath of ns
both, onr aforesaid six children shall be at liberty to own in equalshares and possess peaceably for ever throughout' their generationsthe property: and the six children and their heirs may by leasing•out possess the property and nos sell, mortgage, Ac.
Donsina, who married Mathes, died in 1888, leaving a childGurnwa, who also died in 1889 issueless. Mathes then marriedCarlina, and died in 1915, leaving him surviving his widow and twochildren, fifth and sixth defendants. In 1905 a partition actionwas instituted, when Nonno and her children were given jointlylot 0, in lien of their undivided one-fourth share. The decree readas follows:—“ Lot 'D is assigned to second to sixth defendantsand wife of the seventh defendant." (The second defendant wasNonno, and third to sixth defendants were her children, and1 (1S97) 2 N. L. R. 313.
( 130 )
1984.
CarUfufoMW
«»
juania
Mathes was seventh defendant in that action.) The deed of 1875*was not produced. The fact that Mathes was et the time marriedto Carlina was not mentioned to Court. Cartina brought this-action for partition of lot D.
Held, by the whole Court, that the gift to the six children wassubject to a fidei commissum.
Held, further, per Bertram C.J. and Garvin J. (dissentient*Jaxewardbnb A.J.):—
That on the death of Guruwa his share devolved on his-mother's brothers and sisters and not on Mathes.
That the words '* wife of the seventh defendant '* in thepartition decree referred to Donsina, the deceased wife of Mathes,and not to Carlina, who was the wife of Mathes at the time of the-
• action.
H. J. G. Pereira, AC.(with him Keuneman and S. J, C. Schohman),for defendants, appellants.
E. J. Samarawickreme (with him Soertsz and A. L. Jayesuriya)rfor plaintiff, respondent.
August 4, 1924. .Bertram C.J.—
This case raises a series of difficult questions which arise out of acertain deed of fidei commissum, and for that reason has beenreferred to a Court of three Judges. The principal question is thatof the application of the rule in the well-known case of TUlekeratne-v. Abeyesekere (supra) to the facts of the case. But there are otherincidental questions that have first to be .determined.
The land in question was once a part of a larger land, which in1905 became the subject of a partition suit. The original owneraof the share represented by this land were Sabo and his wife, whois variously referred to as Nonno and Punchina. On April 19,.1875, Sabo and Nonno executed the deed of fidei commissum whichwe have to interpret. I will discuss it more fully later, but at this,point it is sufficient to say that it settled the land upon their sixchildren, but reserved a life interest in the parents. The interestsof the children were subject to a fidei commissum in favour of theirdescendants. The document was not accepted by the children,,and a question arose whether their acceptance could be inferred!from the facts of the case. We came to the conclusion that thatacceptance might be legitimately inferred, and this question neednot further concern us.
In the year 1905 a partition suit, No. 8,681, was instituted forthe whole land by * another co-owner. By that time the familygroup had been reduced in numbers by death. Sabo, the originaldonor, was dead. Babappu, one of the six children, had died withoutissue. Donsina, one of the daughters, was also dead. It is fromDonsina that all the controversies in the case originate. She marrieda man named Mathes, and by him had one child, Guruwa. Shedied in 1888, *and Guruwa died in 1889. But when the partitionaction was instituted in 1905, her husband Mathes was made a party
1*24*
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to the action, being seventh defendant. As a matter of fact,Mathes had bj this time been married again to Carlina, the plaintiifin this action, but this circumstance does not appear to have beenrealized* The family group was thus represented by Nonno, herfour ohildren (now the first, second, third, and fourth defendantsin this action), and Mathes, the husband of the deceased Donsina.Three of the children disputed the rights of Mathes. No onedisclosed or set up the deed otfidei commission of 1875, and theCourt consequently knew nothing about this deed. In the finaldecree dated May 6, 1907, this family group were allotted lot D,but their shares were not divided, although they had, of course, beendivided in the preliminary decree. In drawing up* the decree twosingular mistakes were made. Nonno, mother of all the children,had died pending the action. She was, nevertheless, included inihe decree as one of the persons entitled to lot D. Further, Donsina,the wife of Mathes, had died nearly twenty years before the decree.Yet she was referred to as one of the persons entitled under thedescription of “wife of seventh defendant.*’ The decree reads asfollows: “ Lot D is assigned to the second to sixth defendants andwife of seventh defendant ”—Nonno being the second defendantand Mathes, the seventh defendant.
Mathes died in 1915, leaving as his heirs his wife Carlina and histwo minor children, the fith and sixth defendants in this action.
The first question that we have to decide is whether any effectcan be given to this extraordinary decree. It is defective on theface of it. inasmuch as it purports to assign interests to two personsalready dead. The answer to this question is that the decree mustbe considered good until it is set aside, and that the rights assignedto the deceased persons must be considered as having devolved upon-those who now in law are their representatives in interest.
Now the whole question in this action is whether the interest ofDonsina, who died in 1888, has passed to her four brothers—first,second, third, and fourth defendants—or whether it devolved byinheritance upon her husband’s widow Carlina and Carlina’s twochildren. If it devolved by inheritance, the course of the devolutionwould be as follows: On Donsina’s death in 1888 her share wouldpass half to her child Guruwa and half to her husband Mathes.On Guruwa’s death his half share would also pass to Mathes. On■the death of Mathes in 1915, half his share would go to his secondwife Carlina and the other half to the fifth and sixth defendants.
It would be well at this point to deal with a contention put forwardby Mr. Samarawickreme as disposing of the whole question. Weare bound, he contends, by the form of the partition decree of 1907.That decree specifically assigns lot D to the deceased Nonno, to thefirst, second, third, and fourth defendants, and to the wife ofMathes. The wife of Mathes at the date of the decree was Carlina.And therefore, although she never appeared in the action (and thereis no sign that she was ever heard of), the decree must be taken asgiving her one-seventh of lot D. We are precluded, he contends,
Bertram
C.J.
Carlinahwny
v.
Juanis
( 182 )
19&4* from showing that the wife of Mathes referred to was his deceased— wife Donsina.. The language used in the decree being plain in itselfand applying accurately to an existing fact, namely, the fact that—-Garlina was the wife of Mathes, evidence may not be given to show
Corlinhamy y. wag not meant to apply to this fact. See section 94 of theJuanis Evidence Ordinance, No. 14 of 1895. Mr. Pereira, on the other hand,contends* that the case comes within section 96 of the EvidenceOrdinance, and that this is a case in which the facts are such thatthe word ** wife ” might have been meant to apply either to Donsinaor to Carlins, and that evidence may be given of facts which showthat Donsina is meant. 1 am of opinion that the case is withinsection 96. In the first place, I think it is clear that section 94must be read as subject to section 96. In other words section 96:qualifies section 94 for the purpose of a particular class of case.It may be perfectly true that the words to be interpreted applywith apparent exactness to a particular person, >ut as soon as itis shown that they are also capable of applying with equal exactnessto another person, an ambiguity arises, and the section comes into*operation. The section is designed to give effect to the old rule ofEnglish law with regard to latent ambiguity. The circumstancesto which that rule applies in the case of wills are thus expressedby Lord Abinger C.B. in Doe v. Hiscoclts 1: 44 Where the meaning ofthe testator’s words is neither ambiguous nor obscure, and where*the devise is, on the face of it, perfect and intelligible; but fromsome of the circumstances admitted in proof, an ambiguity arises,,as, to which of the two or more things, or which of the two or morepersons (each answering the words in the will), the testator intendedto express."
Now we have to interpret the words of the decree, not absolutelybut with reference to the circumstances under which it was delivered..It is not merely the grammatical or logical meaning of the words,,detached from all surrounding circumstances, that we have todetermine. We have to determine what the author of the documentmeant by them in the circumstances under which he was writing.In determining this intention, are we not as part of those circum-stances entitled to take into account the state of the knowledge, andthe belief of the author of the document, at the time when he usedthe words? In this particular case the Judge used the expression“ wife of Mathes " in the belief that Donsina was still alive, andwithout the knowledge that she had died and that Mathes hadmarried again. Is it really to be contended that we have to leavethese circumstances out of account in determining the meaning ofhis words?
Supposing a man left a legacy to his son’s wife, in the belief thatthe son was legally married to a particular woman, but supposingthat, unknown to all concerned, a woman previously married to theson but believed to be dead proved to be still alive, so that theson's second marriage was, in fact, bigamous, is it really to be1 (1839) 9 L. J. Exch. on p. 80*
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supposed that the legacy would go to the stranger thus' appearingon the scene ? Or Suppose that an enthusiastic patriot on hisdeathbed left a legacy of £1,000 to Lord Nelson, but that at thetime of the execution of the will, unknown to all concerned, LordNelson had just perished' at the battle of Trafalgar, would the,legacy really go to the person, who, at his death, had succeeded toLord Nelson’s title.*
It is singular that there is no very direct authority on the. question,but 1 have observed two cases whiob seem . to indicate that, indetermining the meaning of the words used by a testator, the stateof his knowledge may be taken into account. One case is In re Taylor-Cloak v. Hammond.1 There a testator gave a share of her residueto her “ cousin Harriet Cloak." She had no cousin of that name,but she had a married cousin,. Harriet Crane, whose maiden namewas Cloak ; and the wife of one of her .cousins was called HarrietCloak. Cotton L.J. observed :• “ Evidenoe of the surroundingcircumstances and of the state of knowledge of the testatrix is' admissible …. There is also evidence that the testatrixknew that her cousin who had been Harriet Cloak was married.”
The other case is In re due Boohet..* There it was universallysupposed that a certain Bichard du Boehet was married to a. woman,who was reputed to be his wife. The -testatrix bequeathed certainproperty amongst others to the children of her nephew Richard-du Boohet. When the legacy took effect, it was discovered that.Biohard du Boehet and his wife were not actually married till afterthe death of the testatrix. By a very strict rule of law I subject to'certain recognized qualifications, ” children in a will must beinterpreted as “legitimate children.” It* was held that under thiswill, in the circumstances, that is to say, in the state of. knowledgeunder which the testatrix made it, the two illegitimate children of.the union, who were, in existence at t-he date of the will, wereincluded in the beneficiaries.
The surrounding circumstances, therefore, in my mind disclose -anambiguity. And the question we have to determine is this;. Didthe expression •“ the wife of Mathes, used by the Judge in drawingup the decree, mein the first wife of Mathes. whom he believed to ‘be alive, • and whose rights he conceived himself as having to dqfer-mine, or the second wife, of .whose existence he'was wholly ignorant.To ask this question is to answer it. –
. Were we reduced to such an arbitrary and unjust position asthat whioh Mr. Samarawickremg maintains that we are to accept,we should still be able to do justice by the" exercise of our powers ofrevision. AH the persons interested are before us; we could sendfor the record in the partition action and correct the decree sO as-to bring it into accord with the' obvious intention of the judgment.
It is not necessary, however, in the view I take to pursue this course.
We will, therefore, in the first instance', ascertain the effect of thepartition deoree which declares lot D to belong to the representative’ (1386) 34 Ch. Div. 255.1 (1901) 2 Ch. 441.
1924.
' Bbktbmc*OUT. '
Carlinhamtf
v.
Juania
19J$4.
■fiURTRAM
C.J.
Oartinahamy
Juanis
C 134 )
in interest of the deceased Nonno and her four children' (first, second,third, and fourth defendants), and to the represents!tive in interestof the deceased Donsina. The present action is a partition action,and we have to. assign shares in this lot. We might do this inthree different ways: —
(а). We ‘ might, as Mr. Samarawickreme contends, divide the
lot equally, and assign one-sixth to each..
(б)We might assign to each claimant shares according to the
allotment of the preliminary decree.
(p) We might assign shares in accordance with the deed of fideicommissum of the year 1875.
The first of these alternatives would 'be clearly arbitrary. • Sucha result could not have been intended by the Court. In assigningJot D to this family group, the Court must, have intended that theyshould hold it in undivided shares according to their respectiveinterest-whatever they were. There is no" reason to impute to theCourt any intention further to define those interests. We have twoauthorities which bear upon the question. That first is SinnoAjppu v. Dingirihamy 1 which declares that “where a Crown grantin favour of several grantees conveys the property to them sirnpli-oiter, without specifying the respective shares of the several grantees,there is no presumption that the grant was made in equal shares.”The other is the case of Appu v. Silva 3 which declares that “ whena property is purchased by several persons, and the deed does not•specify wliat share is conveyed to each, the deed itself is primdfacie evidence that they acquired title in equal shares. * This in-ference may be rebutted by specific evidence as to the intentionof the purchaser. ’. In a partition decree I do not think therewould be any such prime facie inference: The intention of the Courtwould necessary be that, person, to whom such a lot was assigned•should enjoy it in accordance with their respective rights.
There is very much more to. be said for the second alternative,namely, that shares should be in accordance with those assigned-in the preliminary decree, which is recited or referred to in the finaldecree. But what then is to happen to the deed ol ficlei commissum ?It was not produced in the action, and is brought forward for thefirst time in this!' action by the plaintiff herself. The assignmentof lot D to the family group bv the partition decree is not in itselfinconsistent with this deed. The deed varies the respective rightsto which the parties interested under the decree would be entitledas among themselves. Even if the decree was interpreted as beinginconsistent with the deed, the fidei commissary rights of childrenin the next generation would be unaffected. It is settled law thata decree in a partition suit does Hot prejudice the rights of fideicommissaries. See the cases collected in Marikar v. Marikar*
1 (1912) IS A’. L. R. 259. •8 (1922) 24 N. L. R. 42S.
* (1920) 22 N. L. It. 137.
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‘Even if we were to assign shares in accordance with the preliminary 'decree, we should have to declare those shares to be subject to the _
*RwiwmiW
rights of fidei commissaries under the deed of 1875. In my opiniono. J.
in taking an assignment of lot D under the partition decree of 1907,~~~
the family, group, with which we are .dealing, left unaffected1 therights under the original deed of fidei commissum. And now that' Juanislot D has to be partitioned, it must, in my opinion, be partitioned'in accordance with the terms of that deed.
This brings us to what is the crux of the case, namely, theinterpretation of the deed. The deed creates an undoubted fideicommissum. As I read it, it makes a present gift to the six childrenmentioned in the deed, subject to two provisos. The first is thatSabo and his wife Nonno are to retain life interests in the landsdonated, and the second is that after their death, the lands are tobe subject to a fidei commissum in favour of the descendants of thesix children ** for ever throughout their generations.” It is not .necessary to subject this document to a very niinute analysis. Mr.
Pereira contended that there was no present gift to .the six children,but that they only took in succession to Sabo and his wife, and thatSabo and his wife were both owners and not merely usufructuariesUntil their deaths ; With this difference that Sabo reserved, to himselfthe right to dispose of the property, whereas that right was with-held from his wife. I prefer the interpretation of Mr. Samara-wickreme, namely, that the • interests of Sabo and his wife wereusufructuary only, and that the power of disposition which seemsfo be impliedly reserved to Sabo must be interpreted in effect as apower of revocation coupled with the power of disposition:In
the view I take of the meaning of the deed, it makes no difference/whether the six children took a present gift or only a gift in successionto their father and mother./
It remains, therefore, to interpret the fidei commissum clause/ Itis, as a matter of fact,.in a form which has been repeatedly interpretedalready. It is not distinguishable from the formula whicJH wa&interpreted by the Privy Council in Tillekeratne v. Abeyesekera(su^Ta^
A long succession of cases has dealt with a succession /of similarformulae differing in details of expression, but not in/Substantialeffect, and the rule in Tillekeratne v. Abeysekere (supfo)j has in factbecome a rule for the interpretation of formulas of/this description.
It is not, of course, dn- absolute rule. Circumstances in the factsor particular expressions, in the context may . serve to show aftintention differing from that which the rule has laid down as theintention prima facie to be imputed to the parties. But subject tothis, the course of the decisions has been uniform, and they wererecently re-examined and reviewed in the' case of Usoof v.Rahimath.1-
The rule .in Tillekeratne v. Abeyesekere (swpra) may be thusformulated ; that where a. fidei commissum is created in favour of.
1L. R. 225.
( 136 )
1924.
BsbtbamCL J.
'CarUnahamy. v.
Juanis
the children of ,'the founders and their succeeding descendants, itmust first be determined whether the. intention of the instrumentwas to subject the. property to one entire fidei commissum in favour
of all the children and their descendants, or whether it was to subjectit to a bundle of separate fidei commissa in favour of each of thechildren severally. In my judgment in Usoof v. Rahimath (supra)
I observed that the ,4 question was. often *put in this way/* but thiswas a misconception.* This initial test is the basis of the whole-doctrine. If it is determined that the intention was to create ssingle fidei commissum, this of itself involves the conclusion that.upon any one' line of the descendants being exhausted, the interestof that line, shifts to the other lines. It involves the possibilitythat the interest of one brother or . sister, who dies without issue,may shift to one of the other brothers or sisters or their issue, if theystill survive. The result is that M so long as any one person is inexistence who can show title either as an institute or as a sub-stitute, the whole property remains burdened with a fideicommissum
,Let us apply that rule to the present case: If the intention ofSabo and Nonno was to subject the land to one single fidei commissumin favour, of their children and their descendants, then, on the deathof (xuruwa in 1889, his interest passed to, his four uncles, the first,second, third, and fourth defendants. If, on the other hand, the.intention * was to create six sepafte fidei commissa. then, on thedeath- of G-uruwa,’ his interest passed to his father Mathes, and onthe death of Mathes, the interest so acquired passed* to the plaintiffC&clina and' her two children.
The strongest distaste has, from time to time, been expressedfor the rule laid down in Tillekeratne v. Abeysekere {supra). Ithas been contended that, it is- wholly uncongenial to the local atmos-phere of Ceylon ; that the idea of a share in the property passingfrom ont member of the family' to. another, by survivorship andnot by'Ninheritanc$ is alien to local ideas ; that, in practice, peoplenever trek^such a process as haying taken place that co-owner-ship is theXonly form of tenure locally known ; and that joint-tenancy ;and benefit, of survivorship are conceptions of English orScottish law. •' *
i•
Under the pressure of this distaste, * repeated . efforts have beenmade to evade the rule in Tillekeratne v. Abeyesekere (supra) by avariety of expedients. I have discussed- these expedients in myjudgment in Usoof v. Rahimath (supra). All these expedients havebeen revived in the present ease, and we have been asked to examinethem afresh. The first, of these expedients is the suggestion thatan artificial force should be given to the words “ in equal shares/'and that, the use of these words themselves indicate that the donorsintended to create a .separation of interests. I think it has beensufficiently shown that these words have, no artificial force, thoughthey may, of course, conceivably be an element -to be taken intro
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account in determining the intention oi the testator or donor in • 1921any particular case. In the present instrument, however, it seems BbbtbX*dear that the expression referred to, if properly translated, simply C.J.means “ equally,'* It is less specific than a similar expression carWndhamy
equally according to shares " used in Tillekeratne y. Silva lv where v.the words were held not to create a separation of interests. .Juani*
The second plea was a reference to a casual expression #in VoetVIL, 2, I, to the effect that the jus accrescendi has ceased as sOon *as the shares of the co-legatees have vested. This expression. doesnot enunciate a special principle. It merely refers to an obvious'circumstance for an incidental purpose, namely, to explain thefact that by a special rule of law the interest of co-usufructuariesis considered as being acquired horn day to day. The result of thispeculiar principle is that as soon as. one of the go-usufructuaries ceasesto exist , his share accrues to the others.
The third expedient is a. more substantial one. It is the sugges-tion that a special rule applies where the fidei commissum is creatednot by a will but by an instrument inter vivos, and that this specialrule excludes the application of the rule in- TiUekeratne v. Abeyesekere(siipra). I will proceed, to examine this suggestion more fully. 'It-is based upon two passages in Voet, which I have referred to in mvprevious judgment. Voet 39, 5, 14, and 3.6, 1, 67.
The first passage specifically states that the jus dccre&cendi does,not apply to donations, contracts, and other acts inter' 1vivos, 'and that Justinian only extended it to donatibnes tnortis causa becausethey were practically identical with legacies. This passage primarilyrefers to direct gifts and not to fidei commissa. But I concur withmy brother Jayewardene in what I understand to be his view thatthe principle of it applies'to fidei commissa.
The second passage deals with fidei commissa. It . may beconvenient that I should translate it. ** The fidei commissum fails onthe interventipn of an accidental – circumstance, if the . fideicommissary dies pending the fulfilment of the condition On which .thefidei commissum takes effect, inasmuch as he does not transmit theexpectation of this fidei commissum to his heirs … .But
if the fidei commissum originates, not in a last will, but in an instru-ment inter vivos as* lor example, in a pact attached to a donationinter vivos-, or in .a nuptial pact, it is the. better opinion , that if thefidei commissary successors designated by the pact die before the .fulfilment of the condition, they .transmit the expectation of thefidei commissum to their heirs; for it is agreed that those to whoma contractual, debt is due, subject to the fulfilment of a condition,are creditors in respect of that debt, pending the fulfilment of thecondition contrary to the rule which obtains in the case of legatees,where the legacy is.subject to a condition,'and that a man whomakes a contract subject to a. condition transmits the expectationof what is due to him to his heirs, if, before the condition comes
'(1907) 10 N.L.R.214.
1924.
Bertram:C. J.
Carlinahamy
v.
Juanii
( 138 )
into effect," he is overtaken by death.” This is a passage of ‘ 1importance. It undoubtedly indicates a difference between fidci scommissa' establish by wills and fidei commissa established by vinstruments, inter vivos. We shall best appreciate it if we consider 'ieach case separately and under two heads:—•
Let us take the case of a Met commi&sum created by will.. .1If the will bequeaths the property to A as fiduciary with remainder, vto B as fidei commissary, and B dies before A, the property does anot devolve upon B’s heirs, but belongs absolutely to A. If, how- -•ever, the will bequeaths the property to A as fiduciary', with the aremainder to B and C as co-fidei commissaries, and £ dies before A, – ,ithen by virtue of the jus accrescendi the. whole property on A’s a’death goes to C.
(2) Let us n.ow consider the same two cases where a fule.i iscommissum is created by deed of gift. In the first case, where the9igift is made to A as fiduciary, with remainder to B as fidei com- -t.missary, and B dies before A, then the property does not, as in themcase of a will, vest absolutely in A, but goes to B’s heirs, by virtue 080tbe .apes successionis, which has been transmitted to them. So also„oin the second case, that is to say, where the gift is made to A asafiduciary, with- remainder to B and C as co-fidei commissaries, andu.B dies before A, B’s share passes to B’s heirs, and does .'not go eithereto A or to C. This is not because the jus accrescendi does not apply vnor is it because the same words are to be interpreted differential-:according at they appear in a will or in an act inter vivos. It i:ibecause a spes successionis definitely vested' in B by virtue of tlv.fibi-lateral nature of the instrument establishing the fidei commissumwThe gift under that instrument was accepted .by A presumably o:obehalf both of himself and of his succeeding fidei commissaries, aninibhis acceptance gave an immediate interest-to B, which he was ablcion his death- to transmit to his heirs. This principle v$■applied in this 'Colony in the case of Mohamad Bhai v. Silva.1 Thsx-decision cannot be harmonized with the decision of the FrisiaeiSupreme Court-reported in Sande,. and referred to on page 232 <my judgment in Usoof v. Rahimath (supra). But the Court whioidecided Mohamad Bhai'v. Silva• (supra) was a Court of three Judges;and I take it that it must be considered locally authoritative uiveit is overruled.
But it is important to note what that case and the principle whiiit embodies really decide.
*It applies only to. cases where the fidei commissary whodilis the ultimate beneficiary., in whom the property is intended toabsolutely vested. In such a case, if he dies, he transmits Iinterest. * But if, on the true construction of the intrument, he :himself also only a- fiduciary, and has only a life interest, theii
“has nothing to transmit.. The spes' successionis, which vests in hiJis merely the hope of succession to a life interest, and as soonhe himself dies; his interest evaporates.. The rule has no applicatidto the present case, if, on the true construction of the instnimesOm-uwa was not entitled to an. absolute interest, and his inter*■was still burdened with a fidei commmum.
( 130 )
It only applies to cases in which the fidei commissary, whois the ultimate object of the liberality, predeceases the fiduciary,and consequently a question arises whether the property, or hisshare in the property, goes to his fiduciary or to his heirs. Nosuch question arises here, and, again, the rule has no application.
Yoet’s ^observations are subject to a qualification which hasnot been hitherto noted, but which should not be forgotten. “ Andthis is the. case if the nuptial pacts have been so entered into as tohave the force of a contract; but it is not so where they take theplace of last wills-or intestate succession.” In other words, if Iunderstand this qualification .aright, the principle does 'not applywhere the instrument is in effect a testamentary-instrument.
1924.
Bekouk
C.J.
Carlinahamy
v.
Jnanis
It will thus be seen that the principles embodied in the passagefrom Voet quoted above have no bearing here. Guruwa, if the rulein Tillekefatne V. Abeysekere {supra) applies, was not- the ultimatebeneficiary,- and he did not predecease- Donsina, so there is noquestion of his transmitting the spessuccessionis to his heirs. It doesnot seem to me that any hopeful avenue of escape lies in this directionfor those who wish to challenge the rule laid down in Tillekercdnev. Abeysekere (supra).
The only real substantial question which * remains for furtherdiscussion is whether that rule applies to instruments inter vivos..in the same maimer in which it. applies to wills. It is undoubtedly-the case that a stricter rule of construction. applies – – to thpformer than that which applied to the latter. In the .case of willsthe paramount consideration is . the intention of the testator,and effect is, in ail cases, given to that intention even though itmay be indicated by inartistic or inadequate, language, whileinstruments inter vivos must b? interpreted strictly in accord-ance with their terms. I am not, however, able to discern in the 'judgment of Lord Watson in TilleksTatne v. Abeyesekere (supra)any indication that it was affected by- this point of view, or thatit was inspired by the necessity of giving a liberal interpretation tothe terms of the will. On the contrary, the material parts of the-judgment are closely reasoned and proceed expressly upon theterms-of'the will and the form of the disposition. He inquired, inthe first place, whether the will, in respect of the moiety in question,constituted three fidei e.ommissa or one. Having formed theconclusion that it constituted One fidei comimssum he proceeded:
“ Their Lordships have had little difficulty in coming to the con-clusion that according to the .terms of the will the entire moiety‘settled upon grandchildren is made the subject of one and the samefidei commissum. The bequest is not in the form of a disposition•of one-third share of the whole to each of the institutes, butof a gift of the whole to the three institutes jointly, with benefit ofsurvivorship and with substitution of their descendants.Following the terms of the gift, the substitution must be read asreferring to the whole estate settled upon the institutes as a class.”It is impossible to discern in this precise and considered, language,
1984.
BkBTRAM
C.J.
Carbnahamy
Jvanis
( HO )
any suggestion that. the instrument was being interpreted with acertain latitude, with the object of giving effect to some not fullyexpressed intention of the testator-. I find it impossible not to agreewith what is said by De Sampayo J*. in Carry if. Carry.1That decision does not turn on the fact that the fidei commissum wascreated by will and not by deed inter vivos,, but layfc down a rule ofconstruction which is applicable to all fidei commissary, dispositionswhatever the form of the instrument containing them may be.
The just accrescendi, in its ordinary sense, has nothing to do withthis question.. The jus acctescendi applies to accruals betweenindividuals-., A man bequeaths a property to two persons. Oneof these persons predeceases the testator. What is to be donewith his share ? The law presumes an intention that it should accrueto the other. Here there is no question as to the share of anindividual, nor is there any predecease. It is a question not ofaccrual between-individuals, but of accrual between lines. It is aquestion of the construction of , a particular * document, and thequestion is. whether, on the true construction of the. document,the maker intended that, on. the failure of one line, its interestsShould accrue, to the others.”
The disposition in this case is more fully expressed than that inTiUeheratne v. Abeyesekere (supra), but I cannot draw any sub-stantial distinction between the two forms. ' I do not think thatthe words ‘ ‘ to own equally and possess peaceably for ever through-out their generations ” are in any way inconsistent with the shifting *of the. interest derived by /Giiruwa from Donsina to JDonsina’sbrothers on Guruwa’s death.
I confess-that I am not at all'clear that the rule established in.TiUeheratne v., Abeyesekere, (supra), is alien to local conceptions..On the contrary I venture to' think that if those who madedispositions c>f. this 'sort thought the matter out, they would fine!that this rule gave effect to. their- real intention. ..Their 'object is to'endow .their descendants with a particular property. What are thecircumstances which occasion cases in which that rule is challenged ?They generally arise from the fact that some-stranger to the familyclaims to‘have acquired an interest in the property by marriage,Sometimes it is the husband of one of the daughters; sometimesit is some comparatively .remote member of*his family claiming byinheritance through the husband. I can scarcely believe that theauthors of these liberalities contemplated such invasions. . Further,if these liberalities were to be; construed as creating separate fideicommissa attaching to individual shares, ihe result would be that,as time went on,.certain shares in the property would become dis-engaged from the . fidei commissum, while: others, would remainbound. ' Some of the shares would be subject to alienation, otherswould: not. The. homogeneity of the property as a family endow-ment would be destroyed. I doubt very much whether this is aprocpect which the testator and donors could have contemplated,
1 {1917) 4 C. tr. if. SO on p. 55.
( Mi )
and I am by no means sure that the rule in Titlelteratne v. Abeye-sekere (supra), though in fact based on the logical and legal inter-pretation of a particular document-, does not work out as a verydiscerning interpretation of local conditions.
If the above reasoning is sound, it would appear that CarlinaSarny has no interest in the property, and that her claim for apartition should be dismissed. There is, however, one last plea onwhich Mr. Samarawickreiqe relies. By the judgment in the partitionaction it was declared that- lot D was vested in the first, second,third, and fourth defendants, and the wife of Mathes, that is to Say,Donsina. This.is to be interpreted as a declaration that, at thedate of the judgment, the personal represenative of Donsina Hamy,that is to say, Mathes himself, had an interest in the land. First,-second, third, and fourth defendants, as parties to the judgment,are estopped under section 207 of the Civil Procedure Code fromdenying its effect, or from disputing Carlina Hamy’s right .to bem possession. They are estopped,. not absolutely, because futurelidei commissaries cannot be bound by the judgment, but to the. extent of their several life interests. Carlina Hamy claims throughMathes, and she is entitled to take advantage of this estoppel, andto sue . for partition of the land, as though- first, second, third-, andfourth defendants had conveyed to her a portion of their severallife interests. Let us assume that these defendants are estopped tothis extent as against Carlina and her children. This simplymeans that during their respective lives they are precluded fromdenying the right of these persons to possess in common withthemselves. Does this entitle her to bring a. partition action asone of the owners of the land?. This seems to me a suggestionwhich it is impossible to accept. I cannot -hold that a person,who claims simply, an interest as- against a particular co-owner,by estoppel is an owner within- the meaning of section 2 • of- thePartition Ordinance. If she is entitled to assert this estoppel (aquestion on which it is not necessary to express an opinion) herrights will be not affected by'.the dismissal of her action.
. Since I dictated the above judgment I have read the judgmentof my brother Jayewardene, and, as it appears to me, if I may sayso, to be a very important contribution, to the subject, I may bepermitted to .add the following observations.
I agree-that it must be taken that the jus aceresendi in the proper-sense of the term does not apply in instruments inter vivos, that istb say, that in the case of On instrument inter vivos,’ the law willnot presume merely from the conjunction of two or more persons inthe same liberality, that-, in the event- of. one of these predeceasingthe vesting of the liberality, his share was intended to accrue to the -others. In the case of such an instrument,, such a result can onlyarise from operative words, which either -expressly', or. by. impli-cation have this effect. The Frisian case- cited in Sande, ip which a*' conventional fid'ei commissum " was assimilated -to a testamentary
1984.
BkktbakC. J.
Carlinakamy
v.
Juania
( 142 )
1924. fidei commisaum, if regarded os decided from this point ofBertram view, is app.avently counter to the general current of the authorities.
J. I also agree that the dictum of the vesting of the spes successionig
Carlinahnmy under such instruments (though it may in any given case have the
same effect as the exclusion of the jus accrescendi) is a separate andindependent principle. In so far as the Frisian case above referredto seems to conflict with this principle, as adopted by MohamadBhai v. Silva (supra), it must yield in our Courts to the authorityof the later decisions.'
v.
Juania
I do not understand, however,, that those who maintain in this-case that on the deaths of Donsina and Guruwa their interestsshifted to the other lines contend that this is so by virtue of the'jus accrescendi.. Nor do I understand that the Judges who decidedCarry v. Carry (supra), and other similar' local cases, intended todecide that the jus accrescendi applied between fidei commissarydonees. In all these cases, the. interpretation adopted or assertedwas, as I understand it, quite • independent of the jus accrescendi.It was regarded as being the natural and proper construction; ofthe terms of the instrument.
This brings us to what is now seen to be the central questionin.the case. What was the ratio decidendi in Tillekeratne v. Abeye-sekere (supra)? Sly brother Jayewaxdene propounds a very interest-ing suggestip'n, namely, that when Lord Watson said that thebequest was “ a gift of the'whole to the three constituents jointlywith benefit of survivorship,” and. when he emphasized the “ formof the disposition,” he was referring to the fact that the instituteswere ” re et verbis coniuncti,,> and to the presumption which theRoman and Roman-Dutch law is said to draw from such a conjunc-tion that the jus accrescendi would apply. If this proposition issustained, it goes to the root of the matter, for, as appears above, thispresumption is a special rule of testamentary construction, and doesnot apply in the’- case of an instrument inter vivos. But I do not soread the judgment of the Privy Council. It does not seem to inethat Lord Watson was speaking in any way with reference to apredecease and a possible lapse—the contingency upon which thejus accrescendi arises. It might be true that in such a contingencya particular result would follow from such a form of words. Butthis is notwh'at the Lords of. the Prjvv Council were considering.
• What they were considering was the operation of the substitution,and they came to the conclusion that “ following the terns of thegift, the substitution must be read as referring to the .whole estatesettled upon the institutes as a class.55. This is an interpretation,which is applicable equally to a will, and to a dead inter vivos, and.is equally authoritative in any similar case, whether of a deed or of;a will, when the same or an indistinguishable collocation of words;occurs.
In view of the above considerations, I am of opinion, that the appeal!must be allowed, and that the action must'be dismissed, with costs,,both here find below1.
Oabvcc J.—i
The • opinions I have formed on the various points which wereraised and argued at the hearing of this appeal are fully in accordwith those expressed by my Lord in his judgment. But inasmuchas my brother Jayewardene has not been able .to take the sameview, it would perhaps be as well that I should set down my ownreasons for the opinions I have formed on the points which appearto me to be decisive of this appeal.
The facts are fully set out in the judgment of the Chief Justice,and need not be restated.
The first of the contentions advanced by Mr. Samarawickremewas that the effect of the final decree, entered in the earlier partition■case by which this land was carved out of a larger land of whichit was a part,'was to vest an interest in this land in the plaintiff.This land is admittedly the lot D referred to in that decree whichassigned lot D jointly to the “ second defendant, third to sixth-■defendants, and the wife of the seventh defendant.’’ The evidencein this case indicates that at the date of the decree referred to, theseventh defendant was married to the plaintiff Cai’lina, his firstwife being then dead.
It was argued that section 9d of the Evidence Act requires thatthis decree shall be construed as if it read “ seventh defendant’s wife,-■Carlina." Where the external circumstances are that the seventhdefendant' was twice married, 'I cannot accede to the contentionthat the words “ seventh defendant’s wife ” refer without ambiguityto tile living wife and not to the deceased wife. This is, in myopinion, a case • which is governed by section 96 of the EvidenceAct. I' am dearly of opinion that it is competent for a Court tolook at the other documents which together form the record of aproceeding in Court together, the. meaning and effect of the adjudi-cation embodied in the decree.
^Fhe portion of the final decree quoted by me can only meanthat the lot D is assigned to the persons who were the second, third,fourth, fifth, .and sixth defendants, and the person referred to inthe proceedings as the wife of the seventh defendant. It is obviouslynecessary to refer to the other parts of the record to determinethe identity of "the persons referred to in the decree as the second,third, fourth, fifth, and sixth defendants. If this which is neces-sary is permissible, it is surely permissible to refer to, the recordto determine the identity of .the person referred to as the seventh■defendant’s wife. The argument that each of- several documentswhich together form one whole must be regarded as separate anddistinct to be interpreted and construed independently of the otherdocuments which go to make the whole is not sound.
There can be no doubt that the person referred to in the finaldecree as the seventh defendant’s wife was his deceased wife Don-sina, who was the daughter of the second defendant and sister of thethird, fourth, fiftd, and sixth defendants in that case. We are all
( 144 )
1924* Agreed that the document before us is a deed of gift, whereby the
'* donors, Sabo and his wife Nonno, gifted this land to their six chil-
Gabvik J. ^ren sub]ect to certain conditions; that the reservations in favourCartinahamy of Sabo and of his .wife Nonno are in effect a reservation of a lifeJuani* interest with a- right of revocation, unto the survivor of them a lifeinterest only. We are agreed also that the gift to the six donees was. subject to. a fidei commissum, and that there is sufficient evidencefrom which an acceptance by. the donees may. be inferred. Butthere appears to be * a difference between us as to the nature andscope of the fidei commissum.
The donors by their deed gifted tbe property to their six children,,and the words by which this fidei commissum is created are aafollows:—.
•“ It is also directed that after the death of us both, our aforesaidsix children shall be at liberty to own equally hnd peaceablypossess for ever throughout their generations the propertyabove 'mentioned, and that the above six children of oursor even their heirs* may by leasing out possess the saidproperty as specified above, and not sell, mortgage, or gift'■ over the same nor make any other grant thereof/*
The language is perhaps not as artistic as it might have been,*/ but the meaning is, I think, clear.v The condition upon which .thisgift was made and accepted is that the six children and their descend-ants shall hold and ;possess the property/.and*-that neither theynor their descendants shall sell, mortgage, gift, or otherwise disposeof the property. The persons to benefit by the liberality are clearlydesignated; they are the . six children and their generations. Eacha and all of them are laid under a prohibition against alienation of theproperty specified in the gift.
Throughout the property is dealt, with* as one whole, and theobject of the . donor's liberality is their six children and theirdescendants. The effect of the language is to create one fideicommissum over -the property as a whole in favour of the .six.children and their descendants. *
It was urged that the words “ to own equally/’, which occur in the. passage quoted earlier,, indicate that this was not a gift .of the wholeland to the six children, but in effect separate gifts to each of* thesix children of a one-sixth share of the land, and. upon this, as afoundation, counsel sought to base his contention that there are heresix separate,-fidei commissa and not one fidei commissum.
The actual words of gift are these: — •
…. v therefore we with our hearty desire have gifted
and .set .over unto our aforesaid six children, in terms, ofthe agreement hereunder/the following property, to wit,
»t.• v,
.Later follows the direction that on the death of both the-donors,the six children “shall be at liberty to own equally and possess, Ac/*
( 145 )
This is a gift of the whole property to the six children jointly 1924.followed by a direction that they shall share equally. The deed is inj
Sinhalese, and the word rendered in. the translation as “ equally ”—-
is ekkakarawe. In the case of Tillekeratne v. Silva (supra) a CarMnafcomysimilar argument to the one now under consideration was .founded Juanisupon a somewhat stronger expression ekkakera katas wasayen,t.e., in equal shares. The words kotos, fvasayen in shares was,it was there contended, used in contradistinction to poduwa,which -means “ jointly or “ in common/' Wendt J. found himselfunable to accept the contention that these words' implied that-each child was have a separate and divided one^sixth ofthe land. The Sinhalese words, he thought, no more implied a divi-sion than the English word " share/'
The facts of this case are in all material respects similar to thefacts of that case, except that the words kotas wasayen are not tobe found in the deed.
The condition in the deed that on the death of both the donorstheir six children were " to own equally and possess peaceably " ,implies no more than , the direction in Tillekeratne' v. Abeyesekere(supra); it regulates the enjoyment of the-land by the institutes.
T am unable to distinguish this case from that of Tillekeratne v.Abeyesekere (supra), and in this view, inasmuch as there are bothinstitutes and substitutes in existence; the heirs of Guruwa have nolegal claim to any share or interest. *
Counsel sought to escape from the rule laid down by thePrivy Council in that case by suggesting that it was only a particular-instance of the rule that in- construing a will the paramount con-sideration ~ is the intention of the testator. This is a deed inthe interpretation of which such considerations have no place* Butthere is nothing in the judgment of the Privy Council which showsthat their decision was merely an attempt to give effect to the sup-posed intention, of the testator. It proceeds upon the form ofthe bequest and the terms in which it is made. Their Lordshipsof the Privy Council had no difficulty in holding that it- impressesthe .whole property with a single fidei commisstim.. That case has ■been understood as laying down the rule that where upon a con-struction, of the document- it appeared that such a* single fideicommissum was created, it followed that so long as a single personwas in. existence who could show a title, either as an.institute or asubstitute, he took the property to the exclusion of all persons whodid not belong to those classes.
It was then contended that the jus accrescendi applied only tofidei commissa created by will, and that it has no application'in'thecase of fidei commissa created by deeds of gift, except in the case ofdonations mortis causa. The true meaning- of the rule known as.the jus accrescendi, the limits within which it operates, and generallythe whole history of the law on this subject has been-fully consideredin the judgment of Bertram C.J. in the case of Usoof v. Eahimath
1924.
<xAJtVXN J.
Cdrlinakamy
v.
Jvanis
( 146 )
Umma (supra). What he then said has been developed with specialreference to the circumstances of this case in his judgment which1 have had the advantage of reading.
Guruwa was not the ultimate beneficiary. He was himselffiduciary for those who belonged to'the classes of persons designatedas successive beneficiaries under this liberality. On his death hisinterests ceased and passed to those for whom he was fiduciary.There was nothing left which could pass to his intestate heirs. This,it seems to me, is decisive of the case..
I- agree with my Lord that this appeal should be allowed, and theplaintiff's action dismissed. ' The appellant is entitled to costs bothhere and in the Court below.
Jayewardene A.J.— •
This .is an intricate case involving difficult questions of law. It isa partition action for the partition of lot D of a land called Talgaha-henawatta. A one-fourth share of this land, admittedly belonged toone'Sabo and his-wife Nonno,' alias Punchina, who W6re married incommunity of property. In the year 1875 Sabo and his wife Nonnoexecuted a deed of gift in favour of their six children, viz.,’ the firstsecond, third, and fourth defendants, Baba Appu who died withoutissue, and. Donsina who married B. Mathes, and about, whose shareall this trouble in the case has arisen. The gift contained a pro-hibition against alienation in favour of the descendants of thedonees. Questions have been raised with i4egard to the effect of thisdeed of gift. I shall refer to it later. In the year 1905 .one of theco-own,ers of the land instituted a partition suit—No 3,861—pre-sumably admitting Sabo’s right to a one-fourth share, and allottingit to Sabo’s wife, Nonno and her children, on the basis of intestatesuccession.
The deed of gift-^-P 1—was not referred to. At this time two ofthe childi'en were dead, viz., Baba Appu and. Donsina. Thedefendants filed no answer, and so without reference to the deed of.gift, a preliminary decree Was entered declaring Nonno (seconddefendant) entitled to half .of one-fourth or one-eighth, and the first,second, third, and fourth defendants, in the present case, who wererespectively the fifth, sixth, third and fourth defendants there,and the wife of the seventh defendant, who was Mathes, to the balance.half of one-fourth. Mathes had at this time married another woman,the present plaintiff. Final decree was thereafter entered awardingjointly to the second defendant,. third to the sixth defendants, andthe wife of the seventh defendant in that case, as absolute owners,the lot D sought to be partitioned in the present action.
Nonno died in 1906, Donsina had died in 1888, leaving a son’Guruwa who died in 1889. The plaintiff claims a share of the lot Deither as the wife of Mathes', referred to in the decree, or as havinginherited it from Mathes along with her minor children, the presentfifth and sixth defendants,. The first four defendants deny theplaintiff’s right to any share, and say that the wife of the seventh
( 147 )
defendant Mathes, referred to in the decree, is Donsina, who wasthen dead, and not the plaintiff to whom he was then married.There is no doubt that the Court intended to refer to Donsina, andif the evidence and facts of this case—No. 3,861—can be referredto to explain the judgment, it seems quite clear that Donsina, andnot the plaintiff, was allotted a share under the decree. .But is itopen, to the defendants to do so ?
In my opinion, section 94 of the Evidence Ordinance stands intheir way. Section 94 runs thus:—“ When the language used in adocument is plain in itself, and when it applies accurately to existingfacts, evidence may not be given to show that it was not meant toapply to such facts.” The term “ document ” 'in this sectionincludes a judgment or decree, for section 91 provides, inter alia, that“ . . . . in all cases in which any matter required bylaw to be reduced to the form of a document, no evidence shallbe given in proof of the terms …. of such matter exceptthe document itself, or secondary evidence of its contents in oasesin which secondary • evidence is admissible under the provisionshereinbefore contained.”.
Now judgments and decrees must under sections 186 and 188 ofthe Civil Procedure Code be reduced to the form of a document, and“ document ” in section 94 includes a ” document ” required bylaw to be in writing. As I read section 94, it means this:That when
a document deals with facts an existence, and the language usedin the document describes them without ambiguity, evidence cannotbe led to show that it was not meant to apply to those faets, but tosomething else. It embodies a well-known rule of the English lawthat ” when the words of a document are free from ambiguity, andexternal circumstances do not create any doubt or difficulty as tothe proper application of the words; the document is to be construedaccording to the plain common meaning of. the words, and'that insuch cases extrinsic evidence for the purpose of explaining thedocument according to the supposed intention of the parties isinadmissible Amir All and Woodroffe on the Law of Evidence inIndia, section 94. This must be read in connection with what PageWood, Vice-Chancellor, said in Webb v.. B'yng 1:—
" Of course, in interpreting any instrument which purports to deal
with property, some extrinsic information is necessary,'in order to make the words, which are but signs, fit theexternal things to which those signs are appropriate. Inreality, external, information is requisite in construingevery instrument; but when any subject is thus, discovered,which not only is within the words of the instrument,according to their natural construction, but exhausts thewhole. of those words, then the investigation must stop;you are bound to take the interpretation which entirelyexhausts the whole of the series of expressions used bythe testator, and are not permitted to go any further.”
1 (1355) 1 K tk J 534 at 593.
1924.
Javawab-.
DENB A* J•
Carlinakatmf
v.
JuaniB
( 146 )
1M4 Here the words “ the wife of the seventh defendant " are plain andJavawab- unambiguous. They apply accurately to existing facts, for MathesmssA,J, had a wife at the time. External oircumstanoes oannot createCarlinaKamu nny doubt or difficulty, as a man can have only one wife. The '
• «• words must be. taken as referring to that wife. It is by a consider-tfuani$ ntion 0f extrinsic oiroumtitanoes that ambiguity is created by.trying to give effect to the supposed intention of the Court, I alsocannot see how Seotioh 08 can have any application here. It refers .to ambiguities known to the law as “ latent ” ambiguities, that is,where the words, as they stand, are quite .dear and intelligible, but it' •is shown that they oan apply equally well to two or more personsor two or more thinks. In such oases parol evidence is admissible- to show what is really meant. Thus in the present case, if the .seventh defendant had been a Muhammadan married to more thanone wife, evidence .might he led to- show Ivhioli of these wives wasiutended. This does not Contradiot the document, .but explainsit. But in the oase of monogamous people to attempt to .prove thatthe word " wife ” applied not to a wife then in existence, butto one who had died, would be to contradiot the terms of the docu-ment. In.applying the principle of ret judicata a deoree or judgmentcan be construed with reference to the pleadings, but that is on apoiiit in which the judgment or deoree is silent.
In my opinion, therefore, seotion 04 applies, and evidence of thepleadings, depositions, Or judgment r-annot be led to show that thewife .of the seventh defendant referred to in'this deoree is not . theplaintiff, who was his wife at the time, but the deceased Donsina.This may appear strange and puzzling" to the lay mind, but such,-inmy opinion, is the law. … *
To allow the present plaintiff to benefit by a decree entered perincuriam would be to sanction an injustice, which should be averted. if possible. It would be .open to us, if'the oircumstanoes renderedit necessary,-td amend the deoree in oase No. 8,861 in revision,and thus prevent the plaintiff getting a share .of a land owing to thefailure of the Court to express its intention dearly. But in the 'view I take of the plaintiff's right to sueoeed to the share of Donsina’through her husband Mathes, rectification of the decree becomesunnecessary.
By. the deed of gift of 1875—B 1—as I have already said, Sabo.and his wife Nonno gifted several properties to their six childrensubject to Certain reservations or conditions and a .fidei commiaetimamong the donees.. The material part of this deed -which is inSinhalese runs as follows:—-^
“Whereas we, Weeramunda Sayakkarage Sabo and lawful wifeDon Philippu Muhandiramage Punchina, both of Dewun-dara, in the Wellaboda patt-u of Matara, do deem it fit andproper to Bet apart something separate unto.'our six'children* viz., W. S. Baba Appu, Juan, Donsina, Christina,Sardiyel, and Juanis, all of the Bame village, for theirwelfare and advancement, and therefore we, with our.
( 148 )
hearty desire, have gifted and set over unto our aforesaidsix children, in terms of the agreement appearing hereunder,the following property of the value of Rs. 1,497.00 whichwe are entitled to, to wit (here follow the names of severallands including the land in question here) . . . .so it is directed that we shall have the right to possess aswe wish the above-mentioned property thus gifted anddo our pleasure therewith during our lifetime, that afterthe death of any one of ub the two persons, the survivormay become entitled to and possess sb well as lease out(if necessary) the lands mentioned above,. and not sell,mortgage, or gift over the same, nor make any other grantthereof, and it is also directed that after the death of usboth, our aforesaid six children shall be at liberty to ownin equal shares and possess peaceably for ever throughouttheir generations the property above mentioned, and thatthe above-named Bix ohildren of ours and their heirs mayby leasing out possess the said property as specified above,and not sell, mortgage, or gift over the same, nor makeany other grant thereof. ”
The effect of this deed was to make an immediate gift of his propertyto the six donees. But the donors reserved to themselves the rightto possess and do whatever they pleased with the properties duringtheir lifetime, on the death of one of them the survivor was to beentitled to possess and enjoy the same without the right to mortgageor alienate, and after the death of both the donors, the doneeswere to be at liberty " to own in equal .shares ” and possess themfor ever from generation to generation without mortgaging oralienating the same. Whether the properties or any of them couldhave been sold or otherwise disposed of during the lifetime of boththe donors need not be considered now, as none of them haB beenalienated. The survivor, in my opinion, got only a life interest,and this is the right the wife, who survived the husband, claimedfor herself under the deed of gift in D. G. Matara, 1,240 (IP 5, para-graph v.) The donees received the property subject to a fidei com-misatan passing from generation to generation or descendant todescendant (Ibanu Agen «. Abeyasekara,1 Weerasekera a. Vdrtina *), sofar as the law would allow. (Belembrom «. Pertimal,* Voet 36,1,33.)Donsina, one of the fiduciary donees, died as already stated in 1888,leaving a son Guruwa, who succeeded to her rights by virtue of thedeed of gift. He too died in the following year, 1889. Nonnodied in 1906. Mathes, the husband and father, survived both.Mathes then married the plaintiff, and died about nine years ago,leaving as his heirs his widow, the present plaintiff, and two children,the fifth and sixth defendnts. The plaintiff contends that on thedeath of Guruwa the fidei commission attaching to .the one-sixthdonated to Donsina lapsed, and that this one-sixth devolved on the‘ (1.004) 0 A L. R. 344.* (1900) 10 N. L. Jt. 1.
' (1910) 10 Ar. L. It. 6.
1994.
Jayawah-DUMB A. J.
CarUnahamy
v,
Juame
*
( 160 )
s m
Jayawab-DBHB A. J.
Carlinakatny
v.
Juanis
heir ab intestato of Guruwa, viz., his father Mathes, and on the death,of Mathes it devolved on his heirs, the plaintiff and the fifth and.sixth defendants. The contesting defendants, on the other hand,,say that on the death of Guruwa without descendants, his one-sixthpassed to the other beneficiaries under the deed of gift by virtueof the jus accrescendi. This raises very difficult and important,questions. The first question to be considered is whether the jusaccresceiidi has anyi application to a case of this kind where thefidei commissum is created by an act inter vivos, such as u deed ofgift. The history and evolution of the law of jus accrescendi havebeen traced by Bertram C.J. in Usoof v. Jlahimath (supra), and Ineed not repeat them here. There is, in my opinion, overwhelming;authority in Boman-Dutch law in support of the view that the jusaccrescendi has no place in contracts, and a deed of gift is in our lawa contract. Voet (39,5,14) in his book on Donations, says (Krause's-Translation. p. 34, section xiv.): —
44 If a donation either of a particular piece of property or of allproperty be made to several persons together, and one ofthem does not accept the gift, his share by no means-accrues to the others, but it rather remains outside theoperation of the transaction of the donation ; because-such a donee is neither an heir nor a legatee ; and onereads nowhere that this right of accrual {jus accrescendi)has been received in contracts or other transactions.inter vivos, but it is found to have been applied by Justinian(in lex unica, sect, luce acutem 14, c, 6, 51) only to donationsmortis causa, which have been assimilated in almost allrespects to legacies.
In his title on 44 Donations mortis causa ” Voet (39, 6 4) points,out that one of the characteristics common to legacies and donationsmortis causa is 44 the right of accrual in the case of a donation toseveral, provided the requisites elsewhere pointed out in the case oflegacies occur. ” Again, in bh, 7, 2t 1, where he is treating of the44 jus accrescendi in usufruct ” he says: 44 If therefore the usufruct ofthe same thing be left to two persons by last will (not so if by contract)on the failure of one to take his portion by a special law not admittedin other servitudes accrues to the other co-usufructuary. " Dekkerin his notes to chapter XXX. of Van Leuxven's Commentaries on theBoman-Dutch Law, which deals with 44 Donations and Gifts, "speaking of the differences between donations inter vivos anddonations mortis causa, says :—44 Whence it follows per se that the jusaccrescendi and the lex Falcidia must likewise be observed as regardsdonations mortis causa.” Then after referring to various other*points of difference, he adds 44 donations inter vivos are transmittedto heirs, whereas donations morties causa are determined by thedeath of the donee before the donor, 99 citing 44 Holl. Consultations,vol. 2, Consultation 39. 99 This note by Dekker is interesting, for in anote to Van Leuwen’s Commentaries on the Boman-Dutch Law (41,6,3)
( 151 )
he has “ combatted in language of extraordinary vigour ” the ruleslaid down by Voet as to the “ conjunotio ” which gives rise to the.application of the jus accrescendi. Dekker must have knownsomething of what he was speaking about.
Perez (VI. 51, 9) is of the same opinion: —
*• Nam in its dumiaxat qua ultima voluntate relinquntur locumJiabet, non item in contractibus, qui iudicantur secundum formam,qua sunt tints.” In all the Roman and Roman-Dutch law writers,the jus accrescendi is referred to in connection with wills, testators,heirs, and legatees, and donees under a donation mortis causa whoare placed in the same position as legatees under a will.
Burge (vol. 2, p. 144) adopts the law as stated by Voet:If a
•donation is made to two, of the whole of the donor's property, or ofa particular subject, and one of them has not accepted it, his partdoes not belong to his co-donee by the jus accrescendi, but isconsidered not to have been given, and therefore to remain with thedonor.” Maasdorp (vol. 3, p. 95) and Nathan (vol. 3, section 1,087)takes the same view, and Nathan adds “ the right of accrual (;jusaccrescendi) does not apply where several persons are donees.”
Voet dealing with the transmission of rights by fidei commissarieswho predecease the fiduciary or die before the fulfilment of thecondition subject to which the property is to pass to them(Voet 36, 1, 67) draws a distinction between fidei commissa createdby will and those created by acts inter vivos.
Again in his book on Donations (39, 5, 4) he says: 4‘The consequence•of this is that such a gift (inter vivos) …. is transmittedto the heirs of the donee, if iH should happen that the donee diesbefore the donor, and thus before the day added to the donation,in accordance with the nature of other transactions inter vivos;since every one is presumed to have contracted, and to have madeprovision, not only for himself, but also for his heirs” (Krause, p. 13).
These propositions negative the possibility of the jus accrescendi.applying in the case of acts inter vivos.
The authorities in support of the view that the jus accrescendi hasno application in the case of donations is extremely weighty, and itwould necessarily be so for the right of accrual is based on the pro-bable wish of the testator and his presumed affection for thelegatees (Voet 7, 2, 9), considerations which can have no place in theconstruction of contracts inter vivos. In Ceylon until the decision ofthe case of Carry v. Carry (supra), in the year 1917, there has beenonly one case in which the jus accrescendi has been applied as be-tween fidei commissary donees (Babaliamy v. Marcinahamy.1) Butin that case this question was not raised, and its applicability wastaken for granted. In South Africa, too, where it has been applied innumerous cases in which wills were contrued (see Juta on Witts,p. 120) in only one case was an attempt made to apply it in thecase of a donation, but the attempt proved unsuccessful. See notein Krauoe's Translation of ” Donations ” 4, p. 11.
1924.
Jayawab-DJEHB A.J.
Varlinahamy
v.
Juanis
1< »T T O
1984.
Jayawar-DIMB A.J.
C'arUnahamy
v.
Juanis
( 152 )
In Carry v. Carry (supra), it was contended that the principleof jus accrescendi could not apply to fidei comtnissa created by actsinter vivos, but that it applied only to fidei commissa created by will.The passage from T7oet 39, 5, 14 was cited, but it was said that it hadno bearing on the point in issue. Wood Benton C.J. said:—‘‘Thepassage in Voet 39, 5, 14 cited for the appellants does not appear tome to be of much weight, for as my brother de Sampayo pointedout, Voet is there discussing the effect of the non-acceptance of thegift and not the rules of- succession,” and de Sampayo J. said:—“Ido not think that Voet 39, 5, 14 which was cited for this propositionhas any particular bearing on the present question, which appearsrather to turn upon the nature of the fidei commissum created bythe deed of gift.” He then proceeded to hold that one and the samefidei commissum had been impressed on the property as a whole,and that as long as any of the fidei commissarii existed at the death,of the fiduciary, no part of the fidei commissum would have failed,but the entire property would go to the survivors. He relied' uponthe Privy Council judgment in TiUekeratne v. Abeyesekere (supra),where the construction of a will was under consideration, and inregard to that case he observed “that decision does not turn on thefact that the fidei commissum was created by will and not by deedinter vivos, but lays down a rule of construction which is applicableto all fidei commissary dispositions, whatever the form of instrumentcontaining this may be.”
The principle laid down here was followed in Ayamperumal v.Menan,1 although Shaw J. ‘‘felt considerable doubt upon the second,point involved in this case and of the application of the rule ofconstruction laid down in TiUekeratne v. Abeyesekere (supra) tofidei commissa created otherwise than by will.” But he did notfeel justified in differing from the ruling in Carry’s case (supra).Now, in my humble opinion, the reason given in Carry’s case forapplying the principles of the jus accrescendi to instruments intervivos are not satisfactory.
The law as laid down by T'oet in 39, 5, 14 cannot be disregardedon the ground that he was there dealing with a case of the non-acceptance of a gift. Voet, as I have pointed out above, insistson the difference in question again and again, and he gives his reasonsfor his opinion, and what we have to consider is not the particularinstance to which the rule was applied, but the principle on whichit is based. The principle is that the jus accrescendi has no place incontracts or acts inter vivos. In another place in the same bookand title, section 4, he speaks of the donees transmitting their rightsto their heirs, if they predecease the donor, for the same reason.If this principle is accepted as sound, then the jus accrescendi isinapplicable to 'acts inter vivos not only at the acceptance stage ofa deed of gift, but also at the subsequent stages, that is in thesuccession to the property gifted, &c.
1 (1917) 4 C. W. if. 182.
( 153 )
As regards the reason given for applying the principle laid down 1924.in Tillekeratne v. Abeyesekere (supra) in the case of a deed of gift, it jAYAwab-cannot be said that the Privy Council was laying down a principle »enb AJ.applicable generally to all cases whether the instrument was a deed carlinahamyof gift or a will. It was then construing a will, and in the con* v.struction of a will the Court is entitled to take into consideration Jw***the intention of the testator though it is not expressed, but thiscannot be done in the case of a contract inter vivos. When we bearin mind this fundamental distinction, it becomes clear that ruleslaid down for construing a will cannot be applied to the constructionof a deed of gift.
Opinions of Judges and the judgments they deliver must be readin the light, of and in relation to the questions they have to decide.
*' There are two observations of a general character which I wishto make ” said Lord Halsbury L.C. in Quinn v. Leathern/ “ andone is to repeat what I have very often said before, that everyjudgment must be read as applicable to the particular facts provedor assumed to be proved, since the generality of the expressionswhich may be found there are not intended to be expositions of thewhole law, but governed and qualified by the particular facts ofthe case in which such expressions are to be found/’
It is, therefore, not possible to say that the principle laid downby the Privy Council in construing a will can be applied to theinterpretation of a deed of gift, where the principles for construingthe two classes of instruments are not identical.
In the last case on the point (Ehoof v, Rahimath (supra)), thisdistinction was again urged, and the question was fully discussed,but Bertram C.J., after a critical survey of the whole field of contro-versy, said: —
** In view of this case (Sande's Dec. Fris. IV.. 5, def. 19) and thelocal cases in which an accrual has been held to be intendedin the case of fidei commissa inter vivos (Carry v. Carry(supra)t Sandenam v, Iyamperumal,2 and Bahahamy v.Marcinahamy (supra) which an examination of the recordshows to be a case of this nature), I prefer to reserve myopinion on the question, whether so far as relates to the jusaccrescendi, there is any substantial difference betweentestamentary fidei commissa and fidei commissa constitutedby instrument inter vivos. The argument, in my opinon,could not, in any case, be put higher than this: that in aninstrument of the latter nature an intention in favour of anaccrual would not be presumed merely from the fact of theconjunction of several beneficiaries in the same liberality,though such an intention in an appropriate case might beinferred.”
{1001) A. G. 495 at p, 506.
* (1916) 3 G. W, R. 59.
( )190*.
Jatawar-DBNB A.J.
CarUnahamy
v.
Juanie
And Shaw J. said:—
“ In Carry v. Cary ", (supra) and Ayasuperumal v. Meenan,*this Court has held the jus accrescendi to apply in case&of fidei commissa constituted by gifts inter vivos, on theground that the language used by the donoi* showed anintention to that effect. I was a party to the latterdecision, and expressed a doubt whether a similar rule ofconstruction applied in the case of a donation inter vivosas applied in the case of a will; but I did not, and do notnow, doubt that a right of accrual may exist in eithercase, when the language of the donor or testator expressessuch an intention."
The case of Carry v. Carry (supra) was decided not on the groundthat the donor intended by his words to create the right of accrualamong the co-donees, but on the ground that the same fideicommissum was impressed on the property as a whole, and that as long;as any of the fidei commissarii existed at the death of the donor,,no part of the fidei commissum would have failed, but the entireproperty would go to the survivors.
But the principle laid down by Shaw J. in Usoof v. Rahimath(supra), that the jus accrescendi may apply to deeds of gift whenthe language of the donor expresses such an intention is unexcep-tionable, and the observation of the learned Chief Justice, when hesaid that in the case of a deed of gift *' an intention in favour cf anaccrual would not be presumed merely from the fact of the con-junction of several beneficiaries in the same liberality " practicallyamounts to the same thing and qualifies to a very great extent thelaw as laid down in Tillekeratne v. Abeyesekere (supra) and Carry v.Garry (supra).
Therefore, according to Usoof v. Rahimath (supra) the jus accre-scendi arises from an expression of intention to be found in thelanguage used, and not from a mere ** conjunction of beneficiariesin respect of the same land as under the Roman-Dutch law.
But is it possible to get over the effect of the rules based on theconjunction of persons, for inferences as to intention to induce theright of accrual arise from a conjunction of persons, unless there isan express “ shifting clause ” in the document ? In mv opinion,unless the intention of the testator or donor is to be presumedfrom the rules derived from the conjunction of words, there wouldbe no words on which the shifting of the rights from one legatee ordonee to another can be justified. The intention of the donor to bepresumed from the conjunction of words and things would compelus to read into the deed of gift the words: “ If one of the donees dieswithout descendants or heirs, bis share should go to his co-donees. "
Whatever justification there may be for adding these words forthe purpose of giving effect to the presumed or probable intention ofa testator, I can find no justification for reading them into an act
1 (1917) 4 C. W. R. 182.
( 155 )
int'er vivos especially in a case like the present where the terms 19847■were the result of an agreement between the parties as expressly jXYAWAB.stated in the deed of gift. In refusing to read into a will the condition »■» A.J.si sine liberis, in the case of a substitution which was direct and not Carlinahamyfidei commissary, Lord de Villiers in his judgment before the Privy v.■Council in Galliers v. Rycroft 1 said:—“ To read into a will wordsw
which the testator has not used, to presume an. intention which thetestator has not expressed, can only be justified by a positive rule•of construction having the force of law; ” and in Ahamadu Lebbe v.Sularigamma3 this Court (Shaw and de Sampayo JJ.) refused toxead such a condition into a deed inter vivos.
De Sampayo J. said : —
“ Voet 36, I, 17 explains the origin of the rule as follows:—‘ Butoften as this condition si sine liberis is expressly added, itis not infrequently implied in accordance with the inter-pretation prompted by feelings of family affection. Suchis the case where the father or grandfather charges the sonor grandson, whom he has appointed his heir and who ischildless, to restore the inheritance to a third person. Thesaid heir is not held to be bound by the testator’s wishes tomake restitution, unless he die without leaving children,considering that it is not very likely that the father wouldhave imposed such a charge, if he had contemplated thecase of there being grandchildren, or would have given thepreference to the succession of others’ descendants to theexclusion of his own.', (Macgregor'sTrans. p. 40.)
Commentators also deal with the subject on the same-footing. See Burge, vol. 4 (new edition), p. 766; Morice,
English and Roman-Dutch Law, p. 333. Judicial decisionsdo not appear to have extended the principle. The case ofGalliers v. Rycroft (supra), which collates all the authorities,shows that the cases^ in which the implied condition hasbeen allowed are concerned with'wills. It may be addedthat there is less scope in the case of deed for the rule ofconstruction, which seeks to give effect to the presumedintention of a settler of property. A deed is a much moreformal document than a will, and it may well be taken tocontain the entire intention of the donor. It deals withspecific property and not with the whole inheritance, andin disposing of a portion of his estate during life, a personneed not be supposed to have thought of other persons asthe objects of his benevolence than those whom he hasexpressly named or designated.
The rule of jus accrescendi was applied in the Roman-Dutch lawfor the same reasons, “ as being in accordance with the probable wishof the testator and his affection for the legatees ” (Voet 7, 2, 9). The1 (1491) A. C. UO ; $ B<d. 74.* (1916) 2. O. W. B. SOS:
( 156 )
1&24.
Jatawar*VB8B AJ.
Carltnahamy
Juanis
reason given by de Sampayo J. apply with peculiar aptness to thepresent case, as there is no “ positive rultf of construction having theforce of law " to compel us to apply the jus accrescendi to acts intervivos.
There is, however, to be found in Sande* s Collection of FrisianDecisions a case which strikes a contrary note : Broer Gosses v.Gerbrandt Hiddest Lib. 4, tit. 5, def. 19,1 in which it is laiddown that the rule which obtains in fidei commissa created by willsand in legacies should be observed in the case of fidei commissacreated by contract. Voet notes this decision in his 5k, 36, 1, 67without comment, and Bertram C.J. has referred to it in his judgmentin Usoof v. Raliimatk (supra). In that case there was a division ofthe paternal and maternal property among the brothers and sisters,by which certain of the brothers were given particular mansions.One of the brothers died without issue, and the other brothers andsisters entered into an agreement that if one or other of the brothers,should die without male issue, the remaining brother or brothers-should succeed to both the mansions, and if all the brothers shoulddie without lawful (male) issue, the mansions should devolve equallyon their lawful daughters and sisters. All the brothers died without-male issue, but two of them left daughters. All the sisters had pre-deceased the brothers, but one of them left daughters. The Courtheld that the sister who died leaving children did not transmit anyright to her heirs, and that the children of the brothers took theentire property by virtue of the jus accrescendi. The Dutchauthority relied on in Sande in support of this view in Peregrinuson Fidei Commissa.
But in dealing with Sande we have to bear in mind what Wesselsays of his works in his History of the Roman-Dutch Later“ It must be remembered," he says: " in dealing with Sande that the*Frisians adhered more closely to the Homan law than the Hollanders,though where both follow the Roman law, the writings of Sande areadmitted to be of high authority."
I have not been able to refer to Peregrinus' work which is nobavailable locally, and Wessel does not even refer to him, although begives sketches of all the writers of any note on the Roman-Dutch law.In his headnote to the case Sande says:—“ An agreement as to*succession to an- inheritance which is similar to a fidei commissum is-not legal, although generally tolerated by the jurists, if it relates-not to the whole estate or a part thereof, but to a particular thing.This opinion was approved by the Court. Under this if the personcalled to the inheritance conditionally dies before the fulfilment ofthe condition, he transmits nothing to the heir."
It is to be noted that the headnote avoids referring to the agree-ment in question as a donation or a contract inter vivos, but speaks-of it as an agreement as to “ succession to an inheritance, " and of'* the person called to the inheritance conditionally, " it may be, thatwhere the contract inter vivos was an agreement of such a nature, the*1 De Vos' Translation of Frisian Decisions, p. S3.
( 157 )
same principles as in fidei commissary succession under a testament 198*.applied. Voet notes a similar distinction in bk. 36, 1, 67, The key jayhwAb_to the decision may be found in the distinction suggested. But even dkjb A.J.if we regard the decision as laying down that in contracts inter vivos Cariinahamtrthe jus accrescendi applies, it is in* direct conflict with the law as laid v.down by Voet, and the other writers 1 have mentioned.Juama
Voet does not regard the dissent of Sande seriously as herepeats the same principle bk, 39, 1, 4. In this paragraph healso takes occasion to point out that under the law of Holland adonation made by ante-nuptial contract by a third person in favourof a bride or bridegroom is irrevocable, and their rights pass to theheir, if the donees die before the condition is fulfilled, but that inFriesland it was otherwise, and that such an ante-nuptial contract-can be entirely altered by testament. (Sonde Decis. Fris., bk. 3, tit.
2, def. 7.) This is the state of the law on,the subject.
Sitting as we are as a Bench of three Judges, we are not boundby the decisions I have referred to, and we are entitled to reviewthem. But it is with the greatest diffidence that I venture toexpress an opinion contrary to that of so many eminent Judges, butI feel the weight of the original authorities, and in my humbleopinion, the law as laid down by Voet ought to be followed, that is.that in the case of donations which are contracts inter vivos, the ruleof jus accrescendi has no application at the stage of acceptance or atany subsequent stage.
The rule of law laid down by Voet (bk. 36, I, 67) that in the case ofa fidei cominissum created by deed inter vivos if the fidei commissarydies before the fiduciary, the former transmits his expectations underthe deed to his heirs, was acted upon by a Bench of three Judges ofthis Court in Mohamad Bhai v, Silva (supra). This decision isbinding on us, and must be followed if the principle laid down thereapplies to this case. But neither that case nor the passage fromVoet on which it is based can have any direct application to the factsof the present case for Guruwa was a fiduciary and not a fideicommissary. That decision and Voet’s statement of the laware only useful here as negativing the applicability of the rule ofjus accrescendi in contracts inter vivos. They can only be used forthat purpose. Voet speaks of “ fidei commissary successors andin Mohamad Bhai v, Silva (supra) the Court was discussing thedevolution of a fidei commissary’s rights.
However, I may remark, that I do not know of any authority forsaying that the “ successors *’ referred to in Voet are the ultimatebeneficiaries or successors. The reference cannot be to the ultimatebeneficiaries, for they have this right when the fidei commissumcomes to an end, and they become absolute owners of the propertyunder the instrument which created the fidei commissum. To*illustrate the position: Suppose A gives a property to B subject to afidei commissum in favour of his children, grandchildren, and theirdescendants. B has a child C, who has a child D. D~dies in thelifetime of C, leaving children.
( 1S8 )1984.
Jaybwar-2>BKE A. J.
Varlinahamy
v.
Juanie
If the fidei commissum was created by an act inter vivos, D'schildren would succeed to the fidei commissary property, but theywould be bound by the terms of the fidei commissum and would haveto hand over the property to their children. The same thing wouldhappen if at any subsequent stage a similar situation arose unless thefidei commissaries are the ultimate beneficiaries, when their heirswould take the property absolutely (Voet 36, 1, 33). But in the caseof a will D being dead when the time arrived for him to succeed, theproperty would vest in C absolutely and pass to his heirs abintestato, unless a contrary intention appears in the will.
The children of D would not succeed to the property. Accordingto Vander Linden (blc. 1, chap. 9, sec. S), a fidei commissum ends“ when the person in expectancy dies before the heir (fiduciary)or becomes incapable or disqualified to take/*
Lord de Villiers has also stated this rule in De Geest's Executorv. De Geest's Executors, given by Macgregor as a note to Voet 36, 1, 67thus:—If Eugenius stood in the position of a fiduciary legatee andnot that of a mere usufructuary, he would, on the failure of fideicommissary legatees, at his death transmit the full property to hisheirs.’* This is the distinction which Voet emphasizes in section 67.It has therefore no application to the facts in dispute here. Guruwawas a fiduciary. His right was not a mere usufruct. He had theplena proprietas cum onere fidei commissi. “ But Boman-Dutch lawthe fiduciarius was a true owner, he had a real though burdenedright of ownership ” per Lascelles C.J. in Baby Nona v. Silva.1This right in certain circumstances ripens into full ownership, forinstance, if the fidei commissary substitute predeceases him, theownership becomes absolute.
That is the right which- every fiduciary lias. In this case on thedeath of Donsina, her son Guruwa became a fiduciary with a vestedright in the property, but subject to a liability to hand it over to hisdescendants, if any such existed at his death. His right was notmerely a spes successions. That -was the nature of his right in thelifetime of Donsina. If he had predeceased Donsina withoutdescendants, Donsina would have become absolutely entitled to hershare (if there was no jus accrescendt) which would have devolved onher heirs ab intestato, but if he had left children, then those childrenwould have succeeded to her rights under the fidei commissum, as thisis a deed of gift and not a will. Thus Guruwa being vested with theownership as fiduciary, on his death without descendants, he wouldtransmit his rights to his heirs. The distinction between fideicommissum created by wills and those created by acts inter vivos withregard to succession was recognized and acted upon in MohamadBhai v. Silva (supra). It is binding on us. That decision clearlynegatives the applicability of the jus accrcscendi to transactionsinter vivos. I would accordingly hold that on the death of Guruwa
1 (1906) 9 A*. L. R. 261.
( 159 )
bis share passed to his heir who was his father, Mathes, and on the 192A.death of Mathes, the plaintiff and the fifth and sixth defendants jaybwab*inherited that share.deotA.J.
Mr. Samarawickreme raised another point, he contended that, Cariinahamyassuming that the jus accrescendi applied in this case, as the share of j^nisDonsina had vested in her and there had been a separation ofinterests: (Voet 7, 2, 1), Garron v. Manualand Mijiet's Executorsv. Ava,3 a South African case, the jus accrescendi would no longeroperate.
But in this case Nonno, who had a life interest, survived Donsinaand Guruwa, and the latter never became entitled to possess theirshare, and consequently there has been no separation of interests asin the South African case.
Further we are bound by the judgment of the Privy Council inTillekeratne v. Abeysekere (supra), where although there had been aseparation of interests and enjoyment of the property for twogenerations, the jus accrescendi was held to operate.
Then we come to the question, does the deed of gift indicate anintention on the part of the donors that the right of accrual shouldtake place as between the co-donees and their descendants. InUsoof v. Bahimath (supra), the principle on which an intention infavour of accrual should be presumed was stated. Bertram C.J.thought that in the case of a deed of gift such an intention should notbe presumed merely from the fact- of the conjunction of severalbeneficiaries in the same liberality.*’ This is a reference to disposi-tions re conjuncti and re et verbis conjuncti of the Roman law (Digest50, 16, 142, 32, 89) and adopted by some Roman-Dutch jurists '
Voet (36, 1, 71) among others and followed in South Africa(Stenkamps v. De VilUers 3) which were considered to necessarilyinduce the jus accrescendi between the conjuncti.__
Shaw J. said that a right of accrual may exist in donations or wills
“ when the language of the donor or testator expresses such anintention.” But the Privy Council drew the presumption that theoperation of the jus accrescendi was intended not from any expresswords used by the testator, but from the fact that they had beenjoined re et verbis. It said “ according to the terms of the will theentire moiety settled upon grandchildren is made the subject of oneand the same fidei commissum. .The bequest is not in the form of adisposition of a one-third share of the whole to each of the institutes,but of a gift of the whole to the three institutes jointly, with benefitof survivorship and with the substitution of the descendants.**
The will did not contain the words “ in equal shares ** or 44 equally,**and the Privy Council emphasized the fact that the gift was givento the three jointly, that is re et verbis conjuncti, and from such a-conjunction without more, the law infers that the testator intendedthat the right of accrual should take place.
{1914) 17 Ay. L. R. 409.* Jones* and Ingram's Leading Gases, 167.
z Jones* and Ingratn’s Leading Gases, 164.
( 160 )
1984.* la the deed of gift under consideration does the language used byJxtbwab- the donors express such an intention ?
pgygA. •Roman.Outch law great latitude was permitted in the
CarUnahamy interpretation of wills, and the Court gave effect to what it consideredJuanis to be the probable wish of the testator, it considered his status andthat of the legatees, his affection for lus family, and various otherextrinsic circumstances, so much so, that a cynic was led to remarkthat the dispositions of the dead depend on the will of theliving.
Can such considerations influence us in the interpretation of adeed of gift or even of a will at the present day ? 1 think not. Thedeed of 1875 proceeded upon an agreement between the parties andthe deed was drawn up in terms of the agreement. It was not ajoint gift to the several donees, as the donees were to take theproperty and own in equal shares. These words according to sameeminent jurists negative any intention on the part of the testator tointroduce the jus accrescendi. What then are the words in the deedwhich would make us read into it the words; ** If any of the doneesor their descendants die without issue, his share should go to theother donees or their descendants.** I can find none. This wasevidently, not one of the terms of the agreement between the parties,if it had been, it would have been so stated in the deed. To insert itnow would be to add a new term to the contract between the partiesand to make a new agreement for them. Does the fact thatthe property is to pass from generation to generation necessarilyimply that if the line of descent of any of the donees was exhaustedbefore the expiry of the fidei commissum, the share of that donee wasto accrue to the other donees or their descendants. 1 cannot find anysuch implication in the words of this gift. The deed of gift must beread as a whole, and reading it as a whole, and as an act inter vivos,1 cannot gather any intention expressed or implied that the rule ofjus accrescendi should apply, and there is “ no positive rule of con-struction having the force of law ** to compel me to presume theintention attributed to the donors by the contesting defendants.
I would, therefore, hold that, even if the rule of jus accrescendinpplied to deeds of gift, there is nothing in this deed of gift tobring this rule into operation.
I would affirm the decree passed by the District Courtdeclaring the plaintiff entitled to a one-twelfth share and the fifthind sixth defendants to a one-twelfth share jointly, and dismiss this.appeal, with costs.
Appeal allowed.