071-NLR-NLR-V-30-CAROLIS-v.-SIMON-et-al.pdf
( 266 1
1929.
Present: Fisher C.J. and Garvin J.
CAROLIS v. SIMON et al.
216—D. C. Galle, 24,476.
Fidei commissum—Bequest to children—Prohibition against alienation—Reversion to Grown on extinction of descendants.
Where a last will contained the following clause :—“ After thedeath of both of us,'the mpvable and immovable property belongingto our estate should devolve-equally on our nine children, and it isour emphatic command that beyond enjoying the same withoutany dispute, they shall .not sell, mortgage, or otherwise alienate, orsell for any debt of theirs any of the immovable properties. More-over it is hereby ordered that if at any time our line of descendantsbecomes extinct all lands and fields belonging to our estate shall bevested in the then Sovereign Lord of the Island.
Held, that- the will created a valid fidei commissum in favour ofthe grandcHildren and the remoter descendants, which under theRoman-Dutch law will be effectual for four generations.
T
HIS was a partition action in which the question in disputedepended upon the construction of the joint will of one
Adrian and his wife Ketona. The relevant clause reads asfollows:—
“ Further after the death of both of us, the movable and im-movable property belonging to our estate should devolveequally on our nine children, and it is firmly ordered thatthey should possess the same by division or in common,without dispute, but should not sell, mortgage, or convey
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in any way to anybody and should not be sold for any debt 1929.of theirs; and further it is ordered if the generation of our (jetrolitchildren and grandchildren were to be ruined without 8immdescendants at any time the ruler of Ceylon should becomeentitled to the whole of our estate and become Crownproperty.”
The learned District Judge held that the clause did not create avalid fidei commissum.
Croos da Brera (with N. E. Weerasooria), for appellant.—Thelanguage used clearly shows that the testator intended to create afidei commissum. There is a prohibition against alienation followedby an indication of the persons to benefit. There is an intention tocreate a fidei commission for the full period allowed by law and tokeep the property in the family. Effect should be given to thisintention. Unless all the descendants are bound by the prohibitionthe Crown cannot benefit. The judgment of Wendt J. in IbanguAgen v. Abeyasekera1 contains a clear exposition of the principlesto. be followed.
H. V. Perera, for respondent.—The prohibition against alienationbinds only the children. The will does not prohibit alienation by* grandchildren and other descendants. The fact that the Crown isto be the ultimate beneficiary does not necessarily suggest that thedescendants are to hold the property subject to a fidei commissum.
The condition upon which the Crown is to succeed is the failureof descendants. This is not by itself sufficient to induce a fideicommission. A similar question was considered in Steenkamp v.
Marais and another? and it was held that where property was givento A subject to the condition that if he died without children it wasto go to C, no fidei commissum resulted in favour of the children.
Croos da Brera, in reply, referred to Mohammado Bhai v. Silva1and 357—D. G., dalle, 23,160 (S. C. Min. December 21,1928).
February 13, 1929. Gabvjn J.—
The question raised by this appeal involves the interpretation ofclause 7 of the joint last will.and testament of Puinkara Mestrigealias Adrian and his wife Ketona. The document is in Sinhalese,and in the translation filed of record the clause in question isrendered aa follows :—
" Further that after the death of both of us, the movable andimmovable property belonging to our estate should devolveequally on our nine children, and it is firmly ordered that
1 (1903) 6 N. L. R. 344.* 25 S. C. (Cape) 483.
» (1911) 14 N. L. R. 193.
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they should possess the same by division or in commonwithout dispute, but should not sell, mortgage, or conveyin any way to anybody and should not be sold for any debtof theirs, and further it is ordered that if the generation ofour children and grandchildren were to be ruined withoutdescendants at any time the ruler of Ceylon should becomeentitled to the. whole of our estate and become Crownproperty.”
The translation is manifestly inelegant and ungrammatical, butdespite these disadvantages, it is at least clear that it was theintention of the testator that the property bequeathed to theirchildren was not on any account to be alienated, and that in theevent, of his line of descendants becoming extinct at any time theestate was to vest in the Crown.
The Interpreter of this Court renders the clause as follows
“ 7. Further, after the death of both of us all the movable andimmovable properties belonging to our estate shall devolveequally upon our nine children, and it is our emphaticcommand that beyond enjoying the same without anydispute either in shares or in common they shall not sell,mortgage, or otherwise alienate or sell for any debt oftheirs any of this immovable properties. Moreover, it ishereby commanded that if at any time our line of decend-ants becomes extinct or disappears all lands and fieldsbelonging to our estate shall be vested in the then SovereignLord of the Island of Ceylon.”
The question is whether by the language of this clause the grand-children and remoter descendants of the testators are admitted to afidei commissary inheritance.
It is urged by counsel for the appellants that there is manifestlyan~ intention on the part of the testators that their estate shoulddevolve in succession upon the successive generations of theirdescendants. It is incontestable that the testator had in mind notonly their children but their grandchildren and remoter descendantsas well, and it is difficult to resist the contention that there is manifestan intention that their estate was to benefit not only their childrenand their grandchildren, but their remoter descendants as well.
If I understood the learned counsel for the respondent aright it washis contention that inasmuch as the language used by the testatorsdid not expressly grant the estate to the children and the remoterdescendants as well, and further as it does not lay the remoterdescendants under an express prohibition against alienation it is notpermissible to give effect to what might appear to be the intentionof the testators unless such an intention is necessarily involved inand implied by the language used by them in creating the conditional
1928.
<}txrm J.
■OanKa v.Simon
( 269 )
fidei commissum in favour of the Crown. He completed the argu-ment by contending that the words “ and further it is ordered thatif the generation of our children and grandchildren were to be ruinedwithout descendants at any time the ruler of'Ceylon should becomeentitled to the whole of our estate and become Crown property ”merely indicate the condition upon the fulfilment of which the Crownsucceeds to the property, and do not necessarily disclose the intentionthat the property was to pass to the Crown from the last of thedescendants. '
A provision by a person that in the event of the line of his descend-ants becoming extinct at any time his property should pass to theCrown appears to me to indicate very strongly the desire that theproperty should pass from generation to generation and ultimatelyupon the death of the last of the descendants to the Crown. Thatthis is the intention becomes more evident when it is rememberedthat the right of a fidei commissarius is to obtain restitution to theproperty from the fiduciarius immediately preceding him in the linemarked out in the disposition or from his heir.
It is difficult to believe that the language of the testators was usedwith no other intention than that of appointing the condition uponwhich the property was to escheat to the Crown regardless of thecircumstance that during the lives of successive generations of theirdescendants the property may by alienation have passed into thehands of strangers.
Counsel referred in' the course of his argument to the case ofSteenkamp v. Marais and, others.1 The case was that of a bequestin a joint will of a testator and his wife to their son C, which wasqualified by the following words “ in the event of C dying after theirdecease without children, the bequest should be void and devolveupon D.” C had children and the substitution by the conditionalfidei commission did not take effect. It was contended that thiswas not for the reason that when there were children the conditionof the fidei commission failed, but because the testators intendedthat.their grandchildren should take in succession to their son Cto the exclusion of D.
This view is supported by Grotius, but after the consideration ofother authorities the Judge came to the conclusion that the words“ if he died without children ” were merely a condition upon whichthe right of D depended and was not a disposition in favour ofthe grandchildren. But the case -now under consideration differsconsiderably from the case of Steenkamp v. Marais and others (supra).It is clear that the testators had in contemplation not merelytheir children and grandchildren but their remoter descendants aswell. The explanation given in the case of Steenkamp v. Maraisand others (supra) viz., that the intention of the testator might well
1 25 S. C. Cases {Cape) 483.
1629*
GUbvin J,
OaroUsv,Simon
( 270 )
1929.
■Garvin J.
OaroUa v.Simon.
have been that upon the birth of a child their father was to he freedfrom the fetter of fidei commissum and thus be placed in. a positionto dispose of the property if he so desired by bequest to his childrenor by permitting them to succeed ab intestate, is hardly sufficientto meet a case where the testator is shown to have contemplated notonly his grandchildren but his remoter descendants as well. Buta further circumstance which distinguishes this case is that thechildren are laid under an express prohibition against alienation.Having regard to the clause as a whole this prohibition is unneces-sary and meaningless, if the sole purpose of the testator was tocreate a fidei commissum in favour of the Crown upon a conditionwhich might conceivably remain unfulfilled for several generationsand which according to the argument of the counsel for the respond-ent was capable of being fulfilled consistently with the right notonly of the children but of the grandchildren and remoter- descend-ants of the testator to alienate the property. What then was thepurpose of this prohibition.against alienation? It seems to methat it was to ensure the devolution of the property upon thedescendants whom the. testator had in contemplation and uponwhose total extinction alone the property was to pass to theCrown.
In the case of a will the intention of the testator governs. Theintention that their property should remain in their family and beenjoyed by their descendants has been sufficiently manifested bythe testators and must be given effect to..
In my opinion this clause creates a fidei commissum in favour ofthe grandchildren and further descendants which under the Roman-Hutch law will be valid and effectual for four generations.
The judgment under appeal will be set aside and the case senthack for such further proceedings as may be necessary and for finaldetermination.
The appellants will have their costs of appeal.
Fisher C.J.—
I have had the advantage of reading the judgment of my brother■Garvin, with which I entirely agree. The intention of the testatorsto.settle the property on their real descendants, as far as possible, is,in my opinion, clear beyond any doubt.
Appeal allowed.