026-NLR-NLR-V-07-DE-SILVA-v.-THOMIS-APPU.pdf
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DE SILVA v. THOMIS APPU.D. C., Qalle, 6,902.
1903.
December 4• and 16.
Donation and fidei commissum inter vivos to avoid probate duty—Acceptance by
fiduciary and fidei commissar;—Section 647, Civil Procedure Code.
A donation and fidei commissum inter vivos in the following terms,—“ I, Don Baron Lewis Gunasekara, do hereby declare to have gifted untomy hamine (wife) named Dona Madalena [here follow particulars oflands, their value being stated as Bs. 1,990] on condition that thepremises so gifted shall not be sold, mortgaged, gifted, or alienated tothird parties hereafter, and after the death of the said hamine the saidlands shall vest in my two daughters and their heirs and estates to dowhat they please with."
Requires acceptance by the fiduciary donee (the wife) to validate thegift to her, and also by the fidei commissary donees (the daughters) tovalidate the gift to them.
It vests in the wife, not a usufruct, but a proprietas, and the wife'sproprietas will become absolute at her death if the daughters have not,before her death, expressly accepted the donation.
Their acceptance after her death will be of no avail.
On the wife's proprietas so becoming absolute on her death, the landsgifted form part of her estate,which therefore,bythe terms of
section 547, Civil Procedure Code, requires administration to validateits devolution or the transfer of any part of it by her heirs.
O
NE Gunasekara andhis wifeMadalena lenttothe defendant
Bs. 350 upon amortgage bond dated14thJuly, 1897.
Madalena died intestateleavingher survivingherhusband and
two daughters, their only children. On the 7th October, 1902,they assigned the mortgage bond to the plaintiff, who raised thepresent action, alleging that Madalena's estate was under Ks. 1,000in value and did not require administration.
The. defendant denied this allegation,. and contended that thetransfer to the plaintiff of Madalena’s rights as mortgagee by herhusband and daughters, who had not taken out administration toher estate, was illegal by section 547 of the Civil Procedure Code.
It appeared that Gunasekara died in 1902, and that by two deedsdated respectively 17th February, 1896, and 17th February, 1897,he* gifted* all his property to his wife Dona Madalena subject to afidei commissum in favour of their two daughters and their heirs.
The District Judge (Mr. G. A. Baumgartner) found that* therewas no acceptance of the gift on the part of the daughters duringthe lifetime of the donor, but that the wife had accepted the giftin the^deeds of gifts themselves. He held that a person makinga donation must openly part with the dominium -by securing theacceptance of the donation by all the donees, whether the propertywas to, vest in them or xit some future date; that such acceptancemust be expressed by notarial deed in the case of immovable12-
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1903.
December tand 16
property, and that until such acceptance the property did not vestin the donee, but remained in the donor. As the daughters hadnot accepted the donation, the District Judge thought that theproperities gifted all formed part of the estate of the wife onlvwho had accepted the gift, and that therefore her estate exceededRs. 1,000 in value. He dismissed the plaintiff's claim becausethe assignment of her rights as mortgagee was invalid for wantof administration.
The plaintiff appealed, and the ease was argued on the 4th ofDecember, 1903.
W. Pereira, for plaintiff, appellant.
H. A. Jayawardana and Wijeyekoon, for defendant, respondent..
Cur. adv. vuli.
16th December, 1903. Middleton, J.—
The question in this case is whether the plaintiff can maintainthe action as assignee of the interests on a mortgage bond givento Don Baron Lewis Gunesekara Appuhamy and his deceased wife,Dona Madalena Hamine. The said Don Lewis and his two•daughters asigned to the plaintiff, and it is alleged by the defen-dant that the estate of the deceased Dona Madalena exceeded thevalue of Rs. 1,000, and that therefore the intervention of anadministrator was necessary for a valid assignment by the terms■of section 547 of the Civil Procedure Code.
This question, as put by the learned District Judge, depends onthe effect of two deeds of gift executed by Don Lewis Gunasekarain favour of his wife and two daughters. The operative part ofthe first deed of 17th February, 1896, was as follows: “ I, DonBaron Lewis Gunasekara, do hereby declare to have gifted (herefollow particulars of 16 lands, all amounting in value to Rs. 1,241).unto my ham]ne named Dona Madalena, and that the said rightsand premises are not to be mortgaged, sold, gifted, or alienated toothers, and after her death the premises thus gifted are to devolveon my two daughters and their heirs and estates to do what theyplease with the same.”
That of the 17th February, 1897, was as follows:—“ I, Don BaronLewis Gunasekara, do hereby declare to have gifted the garden andhouse wherein I reside and «the iron chest in the said house of thetalue of Rs. 730 unto my hamine named Dona Madalena, on condi-tion that .the premises so gifted should not be mortgaged, wld, gifted,or alienated to tljird’ parties hereafter, and after the deati^of thesaid hamine the said garden and house should vest in my twodaughters and their heirs and estates to fio what they please with. ’ ’
I agree wi.th the District .Judge that the terms of .the two deeds■ do not give an usufruct to the wife, Dona Madalena, but vest in
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her properties but not plena, as there is a prohibition againstalienation, but such properties as would I think give her plenaproprietas, provided that she accepted the gift (which she hasdone) in case the gift to her were ultimate. That is to say, if therewere no fidei commissarii to whom to make restitution (Voet 7,1, 13) the gift to the wife would vest an estate in her which woulddescend to her heirs on her death.
In the gift to her, however, there is a further gift over tothe donor’s two named daughters, which there is no evidenceto show has been accepted by them. No donation is complete tillaccepted by the donee (Vanderlinden, translated by Henry, p. 215).1 do not agree with the District Judge that such acceptance mustbe evidenced by notarial deed.
The cases cited from Ramanathan 1851, p. 155 and 1 S. C. R. 19;and Vanderlinden, p. 215, and Qrotius, translated by Maasdorp,p. 307, show that it may be evidenced in many other ways, andthat this Court has held that it is a matter of proof.
The action also appears tohaveproceeded to trialonthe
assumption that there was noproofof acceptancebythetwo
daughters. We have, therefore,a giftinter vivos oftheproperty
vesting in her proprietas to Dona Madalena and prohibiting herfrom alienation, which she has accepted with a further gift over onher death to the two daughters which they had not acceptedbefore Dona Madalena died. This would be. if accepted the creationof a Jidei commissum by act inter vivos which can, according toVoet 36, 1, 9, be as well imposed' by such act as by last will. Itwould seem that Voet 39, 5, 45, would appear to consider thatacceptance is as much required from the fidei co.mmissarius asfrom the fiduciary donee.
If the fidei commissarii didnot accept the partofthegift
designated for them before the death of the fiduciarius, the gift to
her would be ultimate, and the plena proprietas would vest in the
heirs of the fiduciarius on her death, and no acceptance thereafter
could be of anv avail.
" •
Under these circumstances, it seems to me that Dona Madalenadied leaving the property donated to her as part of her estate, and itappears to be of a value exceeding Us. 1,000. Eveq if Dona* Mad-lena divested herself by the deed of 14th July, 1897, *of the propertymentioned in that deed according to the value given in the deeds,and we have'no other evidence to act cfn, hei* estate would stillexceed in value Rs. 1,000. ,
t
I think, therefore, that the judgpaent ctf the District Judge mustbe affirmed, and the appeal dismissed with costs.
1903.
December 4.and 16.
Middleton,
A.C.J.
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1903.
Dtntmker 4ami l(j.
Wendt, J.—
Section 13 of the Ordinance No. 15 of 1876 renders valid donationsbetween husband and wife, which, by our Common Law, wereinvalid except so far as confirmed by the donor’s death. And noquestion has been raised but that the donation by the husband ofhis entire estate to his wife made her the separate owner of it.On this footing I agree with my brother Middleton that the twodonations createtd fid-ei commhsa, under which the fiduciary (thewife had the -proprietor subject to her handling over the lands onher death to a fidei-commissary qualified to vindicate them. Ialso, agree that the fidei-commissaries failed for want of acceptanceby them of the donations to them, and that the wife’s title therebyhecame absolute; so (the lands being over Rs. 1,000 in value;formal administration of her estate was necessary before a validassignment could be made of the mortgage in her favour. Theaction was therefore rightly dismissed.