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Present: Mr. Justice Moncreiff, Mr. Justice Middleton, andMr.. Justice Grenier.
DE KBOES t>. DON JOHANNES
C., Colombo, 13,981
Specific deeise—Assent of executor—Testing of property—Residuary legatee.
No assent on the part of the executor is necessary to pass to thedevisee immovable property which has been specifically devised tohim by will.
Cassim v. Marikar (1 S. C. R. 80) followed.
Moncreiff J.—The provision in a will that the whole of theresiduary estate should devolve on certain persons named thereinis to be regarded as specific in regard to the immovable property.
Middleton J.—A residuary devise of real estate is not specific.But a specific appropriation of immovable property to specificperson is a specific devise.
XjLPPEAL from a judgment of the District Judge of Colombo..
The facts sufficiently appear in the judgments.
W. Jayawardene, for defendant-appellant.
Domhorst, K.C., and Pereira, K.G., for plaintiffs respondents.
Out. adv. vvlt.
•Cl) (1868) 2 B. L. R. (F.B.) 49.(2) (1874) 11 Bom. H. C. Rep. 159.
(3) (1872) 14 Moore'* Indian App. 543.•
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6th February, 1905. Moncreiff J.— ,
This action was brought by Mary Elizabeth de Kroes and herchildren to eject the defendant, C. Don Johannes, from No. 46, 1stCross street, Pettah. The defendant objects that the property isvested in the executor of the will of J. G. de Kroes( and that (undersection 472 of the Civil Procedure Code) he is a necessary party.-
The premises formed part of the estate of the late W. M. deKroes, and in order to understand the pretensions of the parties itis necessary to consider the testamentary dispositions of that gentle-man.
The intentions ascribed by the respondents to the testator arelaudable and not unnatural—but I do not see them in these testamen-tary provisions. It is only by the exercise of unusual subtlety thatthey can even be formulated as the effect of the will and codicils.We have to construe these , writings, but not to make a will for thetestator. What I do see in the condicils is that the testatorwas in a state of excessive mental perturbation, the resultbeing that it is difficult, if it is possible, to make sense of the codi-cils. The will was executed on the 15th of December, 1879, when hewas dying and knew that his son Gregory was insolvent. Three dayslater he made the first codicil, on the 21st he made the second codi-cil, and he died on the 25th. We can hardly hold the notaryresponsible for these codicils. I have no doubt he did what he couldto give effect to the instructions he received, .and that the testator inhis distress gave instructions .for the second codicil which seemed tohim to offer an escape from his embarassment. It might be wiserto abandon the attempt to construe these codicils, but I put upon themwhat seems to be the only possible meaning.
The will contains the following clause: —
I give, devise, and bequeath all the rest and residue of my profperty, immovable and movable, unto my son Gregory,under the express condition, however, that he shall enjoyonly the issues, rents, and profits of the said immovableproperty, and that the said property or any part thereofor the said issues, rents, and profits or any -portion thereofshall not be sold, mortgaged, or otherwise alienated orencumbered, and- shaU .not be liable for any of his debtswhatsoever. I will and devise that, in the event of my saidson finding it necessary to sell any of the said fmmov-able, he shall not do so except after application to theDistrict Court of Colombo, and the proceeds of any suchsale or sales shall be deposited in the said court until asuitable investment in the purchase of other immovable
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property or upon mortgage security shall be available, 1906.and every and all such property so purchased or every February a,and all principal sum or Bums of money so invested shall be moncmot» •subject to the same condition as the above in respect of J.the immovable property I now possess and hereby devise.
After the death of my son I desire that the said immov-able property, or such other as aforesaid, and all principalmoneys that may arise from any sale or sales as aforesaidshall be divided share and share alike amongst the childor children of my said son, the child or children of anydeceased child taking the share to which het or their fatheror mother would be entitled if living. In the event of myson predeceasing his wife, I desire that the said issues,rents, and profits shall be paid to her for the maintenanceand suport of herself and my son's children, and for theeducation of the said children, and so long as she shallremain my son’s widow.”
Three days after executing this will be testator by his firstcodicil dealt with the “ capital or principal sums of money not be-queathed by my said will and which shall go to my son Gregory.”
Gregory was not to spend them. They were to be invested on mort-gage, and he was to be entitled only to the interest of the same.
They were not to be liable for Gregory’s debts, and were to bedeposited in the Loan Board until they should be invested on mort-gage or the purchase of immovable property. Landed property sobought was to be treated in accordance with the provisions in thewill relating to the testator’s landed property.
We have had many suggestions as to the identity of the “ capi-tal or principal sums of money not bequeathed by my said will andwhich shall go to my son Gregory;” but all our speculations havebeen, in my opinion, fruitless. I should therefore be at a loss to giveeffect to this codicil. My brother Middleton thinks that the words“ not bequeathed ” are plainly intelligible, berause W. M. de Kroes■had bequeathed Rs. 40,000 to the children of his daughter Matilda.
There is a clear intention that certain capital sums are not to bespent by the testator’s son, but to be treated in a certain way; but,if I am askeS to say that the distinguished notary who drew thiscodicil described the Rs. 40,000 bequeathed in the will to Matilda’schildren as “ capital or principal sums of money not bequeathed bymy said will, and which shall go to my son Gregory,” I confessI am dot able to comply. I suppose it is meant that this codicilrevoked the bequest to Matilda's children.
Three days later the testator, by his second codicil, providedthat his son Gregory should have Rs. 10,000 out of the capital or
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1006. principal moneys to pay his debts and carry on the testator’*February «. business and that he should “ have the right of disposing by will of allMoNcranri- and singular the property he shall be entitled to under the pro-J* visions of my will and first codicil—and that in the event of hisdying intestate the said property shall devolve on his heirs, andnot on his widow or her heirs. ’ ’
To what was Gregory entitled under the first codicil ?• I cannotsay whether it was that part of the movable property which was inthe shape of capital, sum of the sums of money realized by sale ofimmovable property; under the provisions of the will it was madesubject to restrictions similar to those in the will affecting theimmovable property. But I cannot see how effect is to be given tothe codicil.
What then did the testator mean by “ the property he shallbe entitled to under the provisions of my will ?” Not the movableproperty, because by the terms of the will Gregory had already thepower to dispose of it by will. There remains only the immovableproperty; but it is' said that the testator could not have hadthat in his mind, because the will affected it with a fidei commissumTand it cannot be said that fidei commissarius, who is under the obliga-tion to'make restitution to substituted heirs at his death, is “ entitledto ” the property. I think, the argument is not correct. Thetestator instituted Gregory heir of his immovable" property uponconditions, inter alia, that he should at his death restore the pro-perty to the substituted heirs, namely, his children or grandchildren.He “ gave, devised,, and bequeathed ” the property; he gave Gregorythe ownership, but a burdened ownership. That is a good fidei corn-mis sum. Gregory then having the ownership, and the immovableproperty passing under the will being the only property to which the-provision in the second codicil can apply, I should say that the codi-cils gave Gregory power to dispose of the immovable property bywill and will only. The will of his father had already forbidden himto sell, mortgage, or otherwise alienate or encumber the property.
Counsel for the respondents endeavoured to found a subtie-argument upon the provision of the will to the effect that, althoughGregory was to enjoy the issues, rents, and profits o^ the immov-able property, he was not to sell, mortgage, or otherwise alienate orencumber them; nor were they to be liable for any of his debts.These words are hardly consistent with, the "enjoyment” of therents; they make it difficult to say that Gregory was even “ entitledto ” the rents. The argument is somewhat extravagant.
The creation of this power of disposition might alter, but wouldnot destroy, all the provisions of the will; the fidei commissium would-remain, but oply to take effect in the event of the fiduciary’s dying
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intestate. The authorities on this point are collected in the 2ndvolume of Burge, page 104.
On this view the effect of the will and codicil is—(1) that Gre-gory could alienate or dispose of by will the residue of the movableproperty, (2) that he could dispose of the immovable property bywill only. He could neither mortgage, alienate, nor encumber it;nor make it liable for his debts.
John Gregory de Kroes being armed with this power of dis-position, by his will dated the 5th of January, 1895, left the wholeof his residuary estate to his three daughters. He died on the 19thof July, 1897. I have already said in 166, Colombo, 1,173, that Ido not think that Mrs. de Kroes took any interest under the wills ofher husband and father-in-law.
The premises in dispute forming part of W. M. de Kroes’residuary immovable estate, I should find the first issue relatingto Gregory de Kroes’ testamentary power over them in the affirm-ative. Gregory made use of that power and bequeathed the residueof the property, including these premises, to his three children. Butthe defendant questions their title to sue. In Ceylon it was held thatland passes to an executor exactly as personal property passes to anexecutor in England, and that a legatee cannot take possession ofland devised to him by will without the assent of the executorOndaatjie v. Juanis (1). Such apparently was the view takenby the Privy Council. And the defendant's contention wouldgenerally be supported.by section 472 of the Civil Procedure Code.When property is vested in an executor in any action in which “ thecontention is between the persons beneficially interested in suchproperty and a third person, the executor shall represent persons sointerested ” The executor, therefore, if vested with the property indispute, would be a necessary party to this action.
» But we are confronted with the judgment of the full courtin. Cassim v. Marikar (2) which, however much we may fail tounderstand it, we are bound to follow. According .to' that decisionno assent on the part of the executor is required to pass to,the devisee^ immovable property which has been specifically devisedto him by will. That is not now in accordance with the Englishlaw. By the Land Transfer Act of 1897 real estate generally de-volves upon the personal representatives of a deceased person, andthe representatives may either assent to devise of land made by thetestator’s will or give the devisee a conveyance. But it would appearfrom the English authorities that all devises of real estate are spe-cific. Yet Jessel, M.B., in Bothamley v. Bherson (3) said that “ there
(1) 8 5. C. C. 192.(2) 1 S. C. R. 180.(3) Law Rep. 20 Eq. 312.
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was no differen.ee between the law of devises of real estate—that is,specific devises—and the law of specific legacies,” and that the lawwas not altered by the Wills Act, No. 1 Viet.‘C. .26. Lord Selbornealso says in Oilea v. Melaorh (1) that the word “ specific ” had thesame meaning whether applied to land or to personal estate. Yet,while the devise of land is said to be always specific, the bequest ofall's man's personal property generally is not specific; in Robertsonv. Broadbent (2), the House of Lords held that a bequest of "allmy personal estate and effects* of which I shall die possessed andwhich shall not consist of money or securities for money, to E.A. Robertson for his own use and benefit absolutely ” was notspecific. Yet we are told there is no difference in the meaningof the word as applied to bequests of personal property anddevises of real estate. Under the old law no land could pass bywill, of which the testator was not seized at the date of the will;therefore all devises of land were considered specific. The changein the law made the will speak, as to devises of real estate,from the death of the testator. Such being the circumstances, Isuppose the provision in the. will of Gregory de Kroes to the effectthat ” the whole of my residuary estate shall devolve upon mysaid three children ” is to be regarded as specific in reference to theimmovable property.
My colleagues consider that this property passed under thewill of W. M. de Kroes. Although by that will it fell into “ the restand residue ” of the movable and immovable property, it was onlypart of the residue, and would be regarded as the subject of a speci-fic devise. I think that the appeal should be dismissed with costs.
This is an action claiming ejectment of the., defendant from a houseNo. 46, 1st Cross street, Pettah. The defendant is a sub-tenant ofthe house of one George Walles, lessee under a lease for ten year%dated 1st June, 1883, from John Gregory de Kroes, deceased.
The plaintiffs are the widow and children of the said J. G. deKroes and claim title to the house amongst other property under thewill of W. M. de Kroes dated 15th December, 1879. ,W.tM. de Kroesdied the same year, leaving his son J. G. de Kroes surviving him.
J. G. de Kroes was made an insolvent on the 19th October,1879, and died on the 19th July, 1897.
The defence was that W. M. de Kroes had left two codicilsto his will dated respectively the 18th and 21st December, 1879, bywhich he gave his son J. G. de Kroes power of disposing by willof this and other property, and that by will dated 5th June, 1895,
fll L. R. 6 H' L. 30.(2) 8 App. Cas. 816.
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the said J. G. de Kroes had disposed of the said property appointing 1908.
H. Aliph his executor, and died without revoking the said will. February ft.The defendant further traversed the plaintiffs’ right to bring the Middj^etonaction, which right they alleged was in th eexecutor only.J*
The issues settled were—(1) Under the last will of W. M. deKroes or any of the codicils thereto, had J. G. de Kroes the powerto dispose of the land in claim by wdll? (2) If he had such power,then can plaintiffs maintain this action independently of the exe-cutor of J. G. de Kroes? The District Judge decided in favour ofthe plaintiffs and the defendant appealed.
The property in question here formed part of the immovableproperty disposed of by the will of W. M. de Kroes, and I have alreadyheld in 230, Negombo 3,890, that J. G. de Kroes had no power oftestamentary disposition under the second codicil of his father’s willin respect to any of the immovable property dealt with and settled infidei commissum under W. M. de Kroes’ will and therefore I find thefirst issue in the negative. I do not propose, therefore, to deal withthat question any further, but to consider the second point raisedhere as to whether it is necessary to join the executor of J. G. deKroes’ will as a plaintiff in this action.
In my view of W. M. de Kroes’ will the properties, without powerof alienation of the immovable property settled under W. M. deKroes’ will, vested in J. G. de Kores, and upon his death in 1897 itwas to be divided amongst his children. J. G. de Kroes made a will,appointed an executor, and purported to exercise testamentarypowers which, in my opinion, he did not possess.
According to Ondo.tjie v. Juanis (1) land passes to an executor inthe same way that personal property passes to an executor ijaEngland, and consequently it must vest in .the executor.
In Cassim v. Marikar (2), a decision of the Full Court, and bindingon us, it was held that specifically devised property passed directto the devisee and not to the executor. .
This decision is hardly in consonance with the theory that theposition of an executor in Ceylon as regards land is the game as theposition of executor in Engand as regards personal property orchattels real.
The only house in 1st Cross street, Pettah, mentioned in theinventory of W. M. de Kroes’ estate is under No. 31, but it may bethat- the numbering has been changed as no question is raised onthis point in the pleadings.
If the house in question here formed part of the estate of W. M.de Kroes, it was bequeathed by him with his other immovable-
Q) 8 S. C. C. 192.
1 5. C. R. 180.
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property generally as fidei commissum to his son J. G. de Kroes andat his death to be divided amongst his heirs.
Williams on Executors p. 1171, 7fch Ed., says, " if the testatordirects his freehold or leasehold estate to be sold, and disposes of theproceeds in such a form as to evince an intention to bequeath themspecifically, the legacy will be properly specific.”
Again, at p. 1169, the same author says,, ‘‘every devise ofland is specific,” although in a note it has been considered that sincethe Wills Act (1) a residuary devise of real estate is not specific.
I take leave to think this is not a residuary devise under W.M. de Kroes’ will, but a specific appropriation of his immovable pro-perty to specific persons.
If this, therefor, be a specific devise under the will of W. M. deKroes to his grandchildren, I must Lold that the case of Gassim v.Marikar concludes me, and find the . econd issue in the affirmative.
If I had thought that she case was not covered by the decisionin Cassim v. Marikar, and that the property did vest in theexecutor of J. G. de Kroes, I do not think it would have been right todismiss the action on .that ground, but I should have been inclinedto send the case with a view to the defect being cured by adding theexecutor, if that were possible.
The appeal must therefore be' dismised with costs.
Grenier A.J.—I entirely agree and have nothing to add.
DE KROES v. DON JOHANNES