115-NLR-NLR-V-15-COSTA-et-al.-v.-SILVA-et-al..pdf
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lftlO.
Present: Hutchinson C.J. and Wood Renton J.
COSTA et al. v. SILVA el al.
139—D. C. Colombo, 960.
Bequest of “ all ” movable property followed by enumeration of things—
Are only the things enumerated bequeathedt—Interpretation of
last will.
-A joint will contained the following clauses:—
We doherebygive andbequeathto the survivor of usall
ourmovable property consisting ofpearls, diamonds,
rubies,andothergems; gold, silver, andall jewelleryand
wearingornaments; all furnituremadeofebony, satin-
wood, jak, tamarind, and of other wood; and all vehiclesandanimalsbelongingtous, and lyingat Chilaw, Colombo,
andelsewhere, whichareworthupwardsof Bs. 10,000.
We doherebygiveandbequeathto A, B,and C onejust
halfof ourpropertywhatsoeverbelongingto us, andthe
other one-half share to E and F, who shall after our deathholdandpossess thesamewithoutmortgaging, selling,
granting, or otherwisealienatingthesame or anypart
thereof, but only ghall enjoy the rents and profits thereof,andafter their deaththe saidshares shalldevolve on
their lawful issue without any restriction whatever.
The District Judge held that under the 4th clause all the movableproperties were, bequeathed, and not the things enumerated only, andthat the words "our property whatsoever"inthe5th clausemeant
“ our immovable property."
Held, that underclause 4only themovableproperties enumerated
in it were bequeathed to the survivor;andthatunder clause 5
allthe rest of the property, both movableandimmovable,yere
bequeathed to the persons named,
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fpHE facts are set out in the judgments.
van Langenberg, Acting S.-G. (with him Samarawickrarne), for theappellants.
1910.
Costa v.Silva
Bawa (with him F. M. de Saram)t for the respondents.
Cur. adv. vult.
November 16, 1910. Hutchinson C.J.—
We have to make the best guess that we can as to the^ intentionexpressed by certain ambiguous words in a will. The will is thejoint will of a man and his wife, who, perhaps, did not clearly knowwhat they wanted to say, and probably understood very imperfectlythe language in which the draftsman of the will tried to expresswhat he thought they meant. They were Sinhalese; the will isin the English language; the husband signed his name in Englishletters, and the signature is not more illegible than most Englishsignatures, that is, one can read it when one knows what it wasmeant for; the wife signed it with a mark; and a notary “ certifiesand attests ” at the foot of the will that he read it over andexplained it to the testators..
The will is dated July 7, 1894, and the 4th and 5th clauses of itare as follows:—
Fourth.—We do hereby give and bequeath to the survivor of usall our movable property consisting of pearls, diamonds, rubies, andother gems; gold, silver, and all .jewellery a-nd wearing ornaments; allfurniture made of ebony, satinwood, jak, tamarind, and of other wood;and all vehicles and animals belonging to us, and lying at Chilaw,■Colombo, and elsewhere, which are worth upwards of Rs. 10»0GO.
Fifth.—We do hereby give and bequeath to Manan MuhandirangeLucia Perera, wife of Lolbadewaduge Don Louis of Colombo; Muhan-dirange Ana Perera, wife of Franciscu Monas; and Muhandirange.Maria Perera, wife of M. A. Don Louis de Silva of Colombo, one justhalf of our property whatsoever belonging to us, and the other one-• half share to Philippa Morias, widow of the late Philip Juan Costa ofChilaw, and to Helena Morias, wife of Don Philip Naide of Kandana,who shall after our death hold and possess same without mortgaging,selling, granting, or otherwise alienating the same or any part thereof,but only shall enjoy the rents and profits thereof, and after their deaththe said shares shall devolve on their lawful issue, without any restrictionwhatever.
The question is whether the movable property, other than thethings specifically enumerated in the 4th clause, passed under the-4th or. under the 5th clause. The rest of the will does not appearto contain anything to throw light on this question.
The husband died on September 23, 1897. • The will was dulyproved; and the inventory filed by the executors on November 5,1897, puts the value of the jewellery at Es. 1,500; pony and twotraps, Bs. 500; household effects, Rs. 5,000; cash in the bank,
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1910.
■Hotobjjtsoj*
C.J.
Costa,
Silva
Es. 6,740.25; value of the testator's interest in a shop in Colomboand in the property therein and in the business carried on there,Es. 5,000; probable amount of debts due (to the testator), Es. 3,500.But, of course, these values may be very different from the actualvalues at the date of the will. The widow died on January 28, 1908.
The District Judge considered that the 4th clause was intendedto give all the movable property, and not only the things enumerated,and that the words “ our property whatsoever ” in the 5th clausemean “ our immovable property.” If that opinion is right, thewords “ which are worth upwards of Es. 10,000 ” refer, not to thepearls and other articles enumerated in clause 4, but to the wholeof the movable property.
The learned Judge thought that, from the fidei commissum createdby the 5th clause, it seemed clear that it was intended to apply toimmovable property only. That seems to have been the principalreason for his decision, although he also thinks that this will is verylike the one which had to be construed in Dean v. Gibson.1 Hisprincipal reason does not strike me as a very cogent one, for it isnot uncommon for movables as well as immovables to be the subjectof a fidei commissum, and there is nothing in clause 5 inconsistentwith its application to property of all kinds. And Dean v. Gibson 1does not seem to me to help us at all. The will which was there inquestion contained only one clause: ” I, A. G. Maw, being perfectlycollected and in my right mind, wish to express my earnest desirethat my personal property, consisting of money and clothes, shallbe equally divided among my three surviving sisters, viz., FrancesGibson, ICnathia Mary Dean, and Sarah Taffinder Belton.” Andthe Court, having regard to the probability that the testatrix musthave intended to dispose of the whole of her personal property,thought that she did not intend her enumeration of certain thingsto be exhaustive. The point of the case was that, if the enumerationwas intended to be exhaustive, there was no disposition of theresidue:—a result which it was very unlikely that the testatrixcould have intended. But in our will there is no intestacy in anycase; for it is impossible to say that “ our property ” in clause 5can only mean “ our‘immovable property.” And the word “ all ”in clause 4, which seems to the learned Judge to create even moreambiguity than t-here was in the will in Dean v. Gibson,1 does not-seem to me to have that effect; for if the testators meant “ ourmovable property which consists of ” so and so, that is, “ so muchof our movable property as consists of, ” I cannot see that the word“ all ” makes any difference. It is most unlikely, too, that, if theyintended to enumerate all their movable property, they shouldomit the two most obvious and most important items—money andthe testator’s shop and business. I think that the interpretationwhich is the most natural, and which makes clause 4 consistent
H1867) L. R. 3 Eq. 713.
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with clause 5, is this; that clause 4 is a gift of all that part of themovable property which consists of the tilings there enumerated,and that clause 5 is a gift of ail the rest of the joint property, movableand immovable.
Mr. Bawa contended that, if this interpretation is adopted, therewas an intestacy as to all the non-enumerated movables betweenthe death of one of the testators and the death of the survivor, andthat the Court ought to follow the rule of adopting, where it ispossible, an interpretation which will, prevent an intestacy. TheCourt has to find out the testator’s intention as expressed in biswill; if the will contains words capable of two meanings, and if oneof the meanings would involve a partial intestacy whilst the otherwould not, the Court, or any man of sense, considering the proba-bility that a man when he makes a will intends to dispose therebyof all his property,* will (unless there is some good reason to thecontrary) adopt the second of the two possible meanings, notbecause there is any rule on the point, but because it seems mostlikely that that was the testator’s meaning. But in the presentcase, if Mr. Bawa’s view is right, there is a partial intestacy which-ever construction is adopted; and from that fact I infer either thatsuch intestacy had no terrors for these two people, or else—whichis most probable—that it did not occur to them or to their legaladviser, if they had one, that there would be a partial intestacy.
The case should, therefore, be sent back to the District Court witha declaration that all the movable property, except the articlesspecifically enumerated in clause 4 of the will, passed under the5th clause. The executors shall pay out of the estate the appellant’scosts of the contention on this point in the District Court and onthis appeal.
Wood Bbktok J.—
The material facts in this case have been stated in the order ofthe learned District Judge, which is the subject of this appeal. Thequestion to be decided is whether clause 4 of the joint* will of SimonMorias and his wife Justina has the effect, of vesting in the survivorall the movable property of the community, or only such portionsof it as are specifically enumerated in that clause. The learnedDistrict Judge has adopted the former of these alternative construc-tions. With the greatest respect, I think that he is wrong. Theclause in question is as follows: —
fc We do hereby give and bequeath to the survivor of us all ourmovable property consisting of pearls, diamonds, rubies,and other gems; gold, silver, and all jewellery andwearing ornaments; all furniture made of ebony, satin-wood, jak, tamarind, and of other wood; and all vehiclesand animals belonging to us, and lying at Chilaw, Colombo,and elsewhere, which are worth upwards of Es. 10,000.
1910.
HuTCH1N803
C.J.
Costa v*Silva
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910.
Wood
Coaia v.,Silva •
It is preceded by clauses devising certain immovable property tothe Roman Catholic Churches of St. Sebastian, Silversmith street,Colombo, and St. Mary’s Church, Chilaw, and providing for thepayment of all debts by the executors appointed under the jointwill. Clause 5, which follows it, is in these terms: —
“ We do hereby give and bequeath to Manan MuhandirangeLucia Perera, wife of Lolbadewaduge Don Louis ofColombo; Muhandirange Ana Perera, wife of FranciscuMorias; and Muhandirange Maria Perera, wife of M. A..Don Louis de Silva of Colombo, one just half of our.property whatsoever belonging to us, and the other one-half share to Philippa Morias, widow of the late PhilipJuan Costa of Chilaw, and to Helena Morias, wife ofDon Philip Naide of Kandana, who shall after our deathhold and possess the same without mortgaging, selling,granting, or otherwise alienating the same or any partthereof, but only shall enjoy the rents and profits thereof,and after their death the said shares shall devolve ontheir lawful issue without any restriction whatever.”
It was admitted by counsel in the District Court that the testator,Simon Morias, was up to the time of his death engaged in the businessof arrack rents, toll rents, and plumbago mining and exporting, andowned a liquor shop in Colombo; and the inventory filed in thetestamentary case shows that his movable property greatly exceededin value the value placed by clause 4 on the movable propertiesdealt with in that clause.
I do not think that much help is to be derived from any of thecases that were cited in the District Court, or in the arguments onthe appeal. In Dean v. Gibson1 the will in dispute consisted of asingle clause, in which the. only bequest was a gift by the testatrixof her “ personal property consisting of money and clothes.” Shewas possessed at her death of property, besides cash in hand andclothes, of money out on mortgage, of money secured on a promis-sory note, and of a reversionary. interest in a sum in cash. Itwas held by Vice-Chancellor Wood that the whole personal estatepassed by her will. The ground of this decision was that the words" consisting of money and clothes ” did not cut down the generalityof the gift of property, being only an imperfect enumeration of theparticulars of which the personal estate consisted. The learnedVice-Chancellor attached importance to the fact that the clause inquestion constituted the whole will. The construction which headopted was one that avoided an intestacy. Fisher v. Hepburn2was a clear case of a residuary devise, and the point of the decisionwas that the generality of the residuary clause was not cut downby words of specific enumeration following it. Gover v. Dairs 3 wasi {1867) L. it. 3 Eg. 713.2 .{1851) 14 Bean. 6866.
» {1860) 29 Bean. 222.
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also, in effect, a case of a residuary devise. Timewell v. Perkins1has been doubted in later decisions (see King v. George 2). Whatwas decided there was that a devise of plate, jewels, linen, householdgoods, and coach and horses would be confined to things of thesame nature, and would not cover goldsmith's notes and bankbills. -1 do not think that this case would now be followed inEngland. The rule of law has thus been stated by Mr. Theobald(6 ed. 221) in his Law of Wills:—
“ Large words, such as goods, chattels, or effects, when theyare followed by an enumeration of particulars, will not
be limited to things ejusdem generis The same
is the case, though the particulars are introduced bywords intended to be explanatory of the former words,for instance, ‘namely,’ ‘consisting in,’ ‘together,
with,’ ‘ such as,’ ‘ both in,’ or similar words
Admittedly, we have to look to the terms of the will underconsideration itself, so as to ascertain what it was that the testatorsmeant to do. The view adopted by the learned District Judgemay be summarized thus: Clause 4 purports to deal with “ all ourmovable property; the words “ consisting of,” &c-., are merely animperfect enumeration of that property. Clause 4 follows specific,devises of movable property, and precedes a clause creating a fideicommissum, which, both in itself and by the reference in it to“ rents and profits,” shows that it was intended to apply to immov-able property alone. In the argument of the appeal Mr. Bawaraised a further point. He contended that if the appellant’scontention was correct, there would be an intestacy as regards one-half of the residue of the movable property which belonged to eitherof the joint testators predeceasing the other during the intervalbetween the death of that testator and. the death of the survivor.
I will deal with this argument at once. Under clause 7 the willcan only be revoked during the joint lives of the testators. Onthe death of one of the testators, the immediate beneficiaries underclause 5 could no longer be deprived of their interest in the propertydealt with in that clause by any testamentary act on the part of thesurvivor. All that clause 5 gives to them is a life interest in therents and profits, and inasmuch as it expressly postpones the vestingof that interest till after the death of both the joint testators, thetestators’ intention must, I think, have been to reserve a life interest,in such rents and profits in favour of the surviving spouse.
The argument in favour of the appellants’ contention seems tome to be very strong. I would1 interpret the words “ all ourmovable property consisting of,” &c., as meaning-” all such parts ofour movable property as consisted of,” #c. It will be observed thatthe testators used the words ” all ” repeatedly in the clause—a facti (1740) 2 A. d K. 101.* (1876) 4 Ch. D. 436.
1010.
WoodKenton J.
Costa v.Silva
1910.
WoodRent on J;
Costa v.Sibia
which may be regarded, perhaps, as weakening, to some extent, theforce of its use in connection with the words ” our movable pro-perty.” In addition to that, we have the fact that the testatorsput a specified value on the movable property dealt with in clause4. This would have been unnecessary if they were disposing off alltheir movable property; and, moreover, it appears that the movableproperty as a whole is greatly in excess of the amount stated inclause 4. The terms of clause 5 furnish, I think, another reason infavour of the appellants’ view. It makes use of the words “ our pro-perty whatsoever belonging to us.” These words are wide enoughto include movable as well as immovable property, and, if I amright in what I have already said on the subject, to prevent apartial intestacy as regards the residue of the movable property notenumerated in clause 4. The term ” profits ” at least is not inappli-cable to a portion of that residue. It seems very unlikely that abusiness man, such as Simon Morias is admitted to have been,should have said nothing in his will as to the disposal of his money,and as to the profits of the various business transactions in whichhe was engaged. On these grounds, I think that the appeal should'be allowed on the terms stated by his Lordship the Chief Justice.
Appeal allowed.