041-NLR-NLR-V-17-COUDERT-v.-DON-ELIAS.pdf
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Present : Pereira J. and Ennis J.
COtJDEBT v. DON ELIAS,
446*D, 0. Colombo, 36,298,
Fidei nnmfniwaiiin——(lift to A and his heirs, executors, administrators, andassigns under the bond of fidei commissum—Prohibition againstalienation—Non-acceptance of gift by fidei commissary—Gift totake effect after death of donor—Acceptance after death of donor.
A gift in the following terms: " I have given unto A and B, theirheirs, executors, administrators, andassigns, as adonation,absolute
and irrevocable, butsubject totheprovisions and conditions
hereinafter stated andmentioned,thefollowingproperty,to wit
[property described], to have and to hold the said premises untothem, the said A and B, their heirs, executors, administrators, andassigns,- for .ever, provided always that the said property shall notat any time be sold, mortgaged, or in any other manner alienated,but shall be only held, possessed, and enjoyed by them and theirheirs and descendants in perpetuity under the bond of fidei commis-sum, and provided also that on failure or extinction of heirs, the saidproperty shall revert to and become the property of C. And Icovenant with the said A and B, their heirs, executors, and adminis-trators, that I have not done any act whereby the said propertymay be impeached mtitle *’—washeldto havecreateda valid
fidei commissum.
The word " assigns ” as used above has no more force in repellingan intention to create a fidei commissum than either of the words** executors " and “ administrators.*' All these words are usedabove as a means of vesting in the fiduciary the plena proprietas asa preliminary to burdening the property with a fidei commissum,and the words “ in perpetuity under the bond of fidei commissum '*permit of no construction being placed on the deed other than oneindicative of an intention to create a fidei commissum.
, In. the case of a fidei commissum created by means of a deed ofgift, the effect of non-acceptance of the gift by the fidei commissaryis no more than to give the donor a right to revoke the gift. Shouldhe die' without having revoked the gift, the right of revocation doesnot pass to his heirs. A gift that is to take effect after the death ofthe donor may be accepted after his death ; and (semble) an actionby a fidei commissary to recover the property which is the subjectof the fidei commissum from a stranger who is in possession of it/ atthe time of its vesting in the fidei commissary in terms of the^pdeicommissum is sufficient manifestation of the acceptance by him ofthe gift.✓
fjpHE facts appear from the judgment.
A. St. V. Jayewardene, for defendant, appellant—A meaning mustbe given to every word in the deed. It is not possible to ignore theword “ assigns.” By the use of the word “ assigns ” power was givenSJ. N. B 18828 < 7/52)
1U4.
1*14.
Qoudertv.Don Ettas
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to the grantees to sell the property. The grant of the propertyunder this deed was therefore free, and not subject to any fideicommi8Sum. Counsel cited Hormusjee v. Gassim,1 Aysa lJmw™ v.Noordeen,2 Dassanaike v. Dassanaike* Perera v. Fernando,4 Mac-Gregor's Fidei Commissum 70, Ayea Urnma v. Noordeen.*
Even if the deed created a fidei commissum, there was no accept-ance by the fidei commissary, and the gift to the fidei commissarycannot be valid without such acceptance. De Silva v. Thomis Appu*The property was sold by the fiduciary before it was. accepted by thefidei commissary.
SamUrawickreme (with him Bawa, K. C.9 and Ganekeratne), for theplaintiff, respondent.—In Hormusjee v. Gassim 1 and Ayea Urnma v.Noordeen4, the intention of the testator was not clear, and ihe class tobe benefited was not properly designated. It was on that-groundthat the Supreme Court held that there was no fidei commissum inthose cases. In almost all the other cases cited there was the samedefect in the instruments which had to be construed.'
In the present case no such doubt exists. The deed expresslysays that the property is to be held untjler the bond of fidei commis-sum. Counsel cited Selembram v. Perumal.7 If we give the word“ assigns ” the meaning which the appellant contends for, we shallhave to ignore several clauses in the deed for the purpose of givingeffect to that one word. Counsel also referred to 163 D. C.—Colombo,20,345.®(
Acceptance by the fidei commissary is necessary to render a giftirrevocable, but not for its validity. Asiathuma v. Alimanatchy*2 Burge 149.
A. St. V. Jayewardene, in reply—The mere use of the words“ under the bond of fidei commissum ” is not enough to create avalid fidei commissum. In Selembram v. Perumal7 even without thewords “ under the bond of fidei commissum,” there was a clearfidei commissum created by the deed. Counsel cited Nugara, v.Gonsal,10 2 Burge 143.
. Cur. adv. vult.
February 23, 1914. Pereira J.—
The first question argued in appeal was whether deed No. 7,522d^ted September 20, 1853, created a valid fidei commissum inrespect of the property now in claims The grantor of the deed wasone Johana Perera, and the immediate grantees were her son anddaughter, Johannes and Brezina. The material portion of the deedwas as follows: ‘‘ I have given, granted, assigned, transferred,; and
1 {1898) 2 N. L. R. 190.6{1903) 7 N. L. R. 123.
* (1902) 0 N. L. R. 173.711912) 16 N. L. R.*
.a (ISM) 8F.L.R; 361..•S. a Min., June
•,HIM) 6Leader12.*(1906) 1 A. O. R. S3,
5 (1906) 8 N. L. R. 360.«(1911) 14 N. L. R. 301.*
( m )set over unto Johannes and Brezina, their heirs, executors, adminis- |W4trators, and assigns, as a donation, absolute and irrevocable, but pmii j.subject to the provisions and conditions hereinafter stated and^
mentioned, all that [description of the property donated], to have Don Elia*and to hold the said premises unto them, the said Johannes andBreeiAa, their heirs, executors, administrators, and assigns, for ever,provided always that the said garden and buildings shall not at anytime be sold, mortgaged, or in any other manner alienated, but shallbe* only held, possessed, and enjoyed by them and their descendantsin perpetuity under the bond of fidei commissum, and that the rents,issues, .and profits thereof shall not be liable to be attached, seized,or sfeld by others for the debts of the said Johannes and Brezina orof their heirs and descendants, and provided also that on failure orextinction of heirs, the said garden and buildings shall revert to and
become the property of the Boman Catholic Church of St. Lucia
and the said Johana, for myself, my executors, and administra-tors, do covenant, promise, and agree to and with the said Johannesand Brezina, their heirs, executors, and administrators, that I, thesaid Johana, have not at any time made, done, or committed anyact thereby the hereby granted premises may be impeached intitle,” Ac. In support of the contention that no fidei commissum iscreated by this deed, certain judgments of this Court were cited, but,in my opinion, they have no application whatever to the presentcase. In Hormusjee v. Cassini 1 the gift was a gift, absolute andirrevocable* to M, his heirs, executors, administrators, and assigns,subject to the condition that M should not be at liberty “ to sell,mortgage, or otherwise alienate the property gifted, but possess thesame during his life,” and out of these words it was sought to evolvea fidei commissum, but it is clear that the parties to benefit were notclearly designated in the deed. Similarly, iif the case of Aysa Vmmaa. Noordeen 2 the words used in the deed were ** I have given, granted,assigned, transferred, and set over unto A and B, their heirs,executors, administrators, and assigns, as a gift, absolute andirrevocable, all that portion of a house, &c., to have and to hold thesaid premises unto the said A and B, their heirs, executors, adminis-trators, and assigns, and their children and grandchildren; and thechildren and great-grandchildren of their heirs and assigns shall notsell, mortgage, or encumber the said premises at any time, but holdand possess the same; and the rents, produce, and income thereofshall not be held liable to be attached, seized, or sold for any of theirdebts, but they shall be able to give and' grant the said premises orany part thereof in dowry for their female children, also subject tothe.:, aforesaid conditions and restrictions.” Here too the wordsused import no more than a prohibition against alienation by theparties to whom the property is granted* namely, A and B, theirheirs, .-executors,, administrators, and assigns,” and there is no clear
* {1898) 2 N, L. B. 199.
*(1902) 6 N. L. R. 173*
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'PHBBIBA J.
Goudert t*.Don Elias
indication of any party to benefit by the prohibition, nor are thereother words to indicate that the creation of a fi$ei commiasum .wasintended. In the case of Dassanaike v. Dassamaike 1 the materialwords of the deed in question were: “We have given, gratited,assigned, and set over as we do hereby give, grant, assign, transfer,and set over as a gift, absolute and irrevocable, unto L, his heirs,
executors, administrators, and cissigns, the following,… to have
and to hold ^the said premises unto the said L, hi6 heirs, executors,administrators, arid assigns for ever, subject, nevertheless, to thefollowing condition, that he, the said L, and his generation shallpossess the said lands for ever, but he or his heirs shall not sell,mortgage, or alienate the same in any manner whatsoever." Thesame remarks as those made on the case last cited apply. In thecase with which we are now concerned, however, it is manifest thatthe word “then " in the provision that the garden and buildingsshall be only held, possessed, and “enjoyed by them and their, :heirsand descendants in perpetuity under the bond of fidei commiasumrefers only to the original institutes, namely, Johannes and Brezina,and that the words “ in perpetuity under the bond of fidei commiasum,"and also the provision that V in case of failure or extinction of heirsthe property shall revert to and become the property of the Roman,Catholic Church of St. Lucia," indicate an intention to create afidei commissum. In the case of Selembram v. Perumal,2 wheresimilar words were used, my brother Wood Renton observed: “ Thewords * in perpetuity ' and ‘ under the bond of fidei commiasumleave no doubt in my mind that the testator intended to create afidei commiasum and it is noteworthy that in the present casethere is an omission of the word “ assigns " in the warranty clause,while Wendt J. makes a point of the presence of that word in thecorresponding clause in the deed in question in the case of Dassanaikev. Das8anaike.1 While, if the facts of the cases cited, were such as tomake them applicable to the present case, I should unhesitatinglyfollow the decisions, I should like to observe that I cannot helpthinking that too much importance has been attached .to the use ofthe word “ assigns " in those cases. It has really no more forcethan “ executors " or “ administrators." Property subject to a.fidei commiasum does not go to “ executors " or “ administrators "any more than it vests in “ assigns," and why the word “ assigns "should be singled out for condemnation I cannot quite understand.It is said that the word “ assigns " means any person to whoijri thedonee may be pleased to assign the property; but, similarly, it maybe said with reference to the word “ executor " that it implies thatthe donee might will away the property to any person he liked, and;with reference to the word “ administrator," that the property vestedin the legal representatives of the deceased donee as ■ property-thatbelonged to him absolutely. A grant to A B without qualifications
* 0900) 8 N. L. R. 361.
* (1918) 16 N. L. R. 6.
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is exactly the same as a grant to “ A B, his heirs, erffecutors, adminis- 1M4;trators, and assigns and the fact that words are used to vest, inr
the first instance, absolute dominium in the fiduciary is by no means——
repugnant to the creation of a fidei commissum. Unlike a mereusufructuary, a fiduciary has title and dominium. So much so thatan alienation by him of the property, which is the subject of the fideicommissum, by will or deed, would be operative if there be a failureof the fidei commissary. Voet puts the position thus (Voet 7, 1, 13):
“ When a bare usufruct appears given, the ownership immediatelyon the death of the testator is considered as acquired by those whoat the time were the next of kin of the deceased, or whom he in hislast will declared his universal successors at law, so that even if theydie dining the existence of the usufruct, nevertheless they transmittheir ownership and their hope of becoming full owners to theirheirs, which is not the case when full ownership with the burdenof fidei commie sum (plena proprietor cum onere fidei commissi), or cfmaking restitution after the death of the fiduciary, is understood tohave been left;' for the fidei commissarius who dies during thelifetime of the fiduciarius does not transmit his chance of obtainingthe fidei commissum to his heirs, but restitution is made to thosewho are alive at the death of the fiduciary, and if none such surviveto whom restitution should be made, the fiduciary is taken to bereleased from the burden of fidei commissum, not finding any oneto whom to restore it, and he can then alienate the property as ifunburdened or transmit the full right of ownership to his next heirs.’'
So that it will be seen that under the Boman-Duteh law thereis such a thing as plena proprietas cum onere fidei commissi. T$teplena proprietas may be first conferred by some such words as “Igrant to A, his heirs, executors, administrators, and assigns,” andthen the burden engrafted on it. The only question is whether thewords used sufficiently indicate a clear intention to burden theplena proprietas. In the present case it is inconceivable that thewords " in perpetuity under the bond of fidei commissum ” wereused for any purpose other than that of creating a fidei commissum.
The application to this case of the test that I have laid down inWifetunga v. Wijetunga 1 would give only one result, and that is thatthe deed in question created a valid fidei commissum.
The next question argued was whether it hap been shown that theheirs of Johanhes and Brezina are extinct. On this point I am notprepared to question the verdict of the District Judge on theevidence.
The third question is whether the gift has been duly accepted bythe plaintiff. In De Silva v. Thomia Appu 2 it was held that a giftshould be accepted by a fidei commissary, but in the case of Asiath-uma v. Alimanatchy * Wendt J., who was one of the two Judges who so
1 (1910) 13 N; L. B. 493.2 (1903) 7 N. L. B. 123.
• (1905) 1 A. C. B. S3.
id*.
Pbbeiba I.
Qoudertv.Don'Elias
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held, stated that the conclusion that he had arrived at in the case ofDe Silva v. Tkomis Appu 1 was erroneous, and that after reconsidera-tion of the point his opinion was that the acceptance of a gift by thefidei commissary was necessary only in order to render the gift to himirrevocable by the donor. Now, it is, I think, clear law that if thedonor himself died before'the period had arrived when the propertywas to be delivered to the fidei commissary, the power of revocationwas at an end, and could not be exercised by the heirs of the donor(see 2 Burge 149). Anyway, in the present case it is clear that thedonor’s heirs did not exercise or purport to. exercise any power ofrevocation. The property vested- in them (Johannes and Brezina),and the -conveyance in favour of Seneviratne, the defendant'svendor, was not executed by them, but by the heirs of Johannes.The. conveyance itself is not tantamount to a revocation by Jobanaand Bosa Maria qua heirs of Johannes, even if they were such. The.respondent's counsel argued that there was in any case an accept-ance of idle gifts by the plaintiffs, in that they had brought thepresent action to recover the subject of the donation, and that thatact of theirs was by 'itself an acceptance of the gift. Now, where agift really takes .effect after the death of the donor, it may be acceptedeven after that (Gens* Tor. 14, 12, 16). In the present case, whenthe gift to the Boman Catholic Church of St. Lucia took effect, theproperty gifted was already in the possession of the respondent, whowould not allow the plaintiffs to take possession of it. How werethe plaintiffs to accept the gift except by means of an attempt totake possession of the property? This action is such an attemptapd I am inclined to agree with the respondent's counsel that in thecircumstances of a case like this an action to gain possession of theproperty donated would be tantamount .to a manifestation of theacceptance by the donee of the gift.
For the reasons given above I would affirm the judgment appealedfrom with costs.
Ennis J.—I agree.
Appeal dismissed.
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1 (1903) 7 X. L. R. 123.