DERWRENT PEIRIS and others, Appellants, and A. M. LAVIRIS APPU, Respondent

087-NLR-NLR-V-70-DERWRENT-PEIRIS-and-others-Appellants-and-A.-M.-LAVIRIS-APPU-Respondent.pdf


Peiris v. Lamris Appu
385
[Privy Council]
1968 Present: Viscount Dilhorne, Lord Guest, Lord Wilberforce,Lord Pearson, and Sir Alan TaylorDERWENT PEIRIS and others, Appellants, and A. M.LAVIRIS APPU, RespondentPrivy Council Appeal No. 23 of 1967S. C. 36 of 1962—D. G. Kurunegala, 403jL
Fideicommis8um—Will—Devise by testatrix to her sons—Presence therein of a si sineliberis decesserit clause—Death of a son leaving children—Whether his childrenare entitled to 'property alienated by him—Implied or tacit fideicommissum—Conditions necessary for inferring it.
Where a Will leaving property to the testator’s sons contains in one of itsparagraphs a gift of a clearly fideicommissary character in the event of any ofthe testator’s sons dying without leaving issue, but does not have, in relation tothe sons’ original shares, a corresponding provision which deals expressly withthe event of a son dying but leaving issue, and in particular makes no gift inthat event to the son’s children, an implied or tacit fideicommissum in favour ofthe children of the deceased son should not be inferred, unless the dispositionsin the Will as a whole and the circumstances in which the testator was placedwhen he made the Will justify such inference. When there is a reasonabledoubt in regard to the actual intentions of the testator the Court will decideagainst a fideicommissum.
A testatrix who made her Will on 3rd June 1910 and died on 20th December1918 devised and bequeathed property to her sons in equal shares. A clause ofthe Will was as follows :—
“ Should any of my sons die unmarried or married but without leavingissue then and in such case I desire and direct that the share of such dyingson shall go to and devolve upon his surviving brothers and the children ofany deceased brother such children taking only amongst themselves the shareto which their father would have taken or been entitled to if living subjecthowever to the right of the widow of such son who shall have died leaving noissue to receive during her widowhood one fourth of the nett income of theproperty or share to which her husband was or would have been entitled tohereunder.
If any of my said sons shall die leaving children and also a widow thenand in such case I desire and direct that the mother of such children duringher widowhood shall be entitled to and receive one fourth of the nettincome of the property to which her children would be entitled to under thismy Will.”
Held, that, in the event of a son’s death leaving children, the clause did notper se create a tacit fideicommissum over his original share in favour of thosechildren. There were also strong indications elsewhere in the Will against theinference of an implied or tacit fideicommissum. Accordingly, a son who diedleaving children took his Bhare absolutely and any alienation of It by himduring his life time was valid as against his children.
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“ The present law to be applied may be summarised in these propositions :—
Where in a Will (and mutatis mutandis the same would apply as regardsdeed of gifts), a bequest is made to a child of a testator, the mere presence ofa clause, or condition, “ si sine liberis decesserit ” does not per se create atacit fideicommissum in favour of that child’s children.
Whether, in such a will, a fideicommissum is to be implied is a matterof the testator’s intention to bo ascertained from the dispositons in the willas a whole and from the circumstances in which the testator was placed whenhe made it.
Such an intention must be clearly established : in caso of doubt thepresumption is against the implication of a fideicommissum.”
Appeal from a judgment of the Supreme Court reported in(1965) 69 N. L. R. 169.
Kadirgamar, with D. C. Amerasinghe, for the plaint iffs-appellants.
F. N. Gratiaen, Q.C., with II. W. Jayewardene, Q.C., and R.K„ Ilandoo,for the defendant-respondent.
Cur. adv. vuU.
January 23, 1968.[Delivered by Lord Wilberforce]—
The action in which this appeal is brought is a rei vindicatio relating tosome 200 acres of land in the Kurunegala District known as the RaglanEstate. The appellants claim this land as fideicommissaries under thewill of their grandmother Adeline Winifred Peiris (“ the testatrix ”). Therespondent’s title rests upon a conveyance for value from the father ofthe appellants Richard Louis Peiris. The appellants’ claim was upheldby the District Judge but his decision was reversed by the Supreme Courton the ground that the appellants failed to establish the existence of afideico mmissum.
The main question for determination is whether, under the terms of thewill and in accordance with certain rules of Roman Dutch Law, afideicommissum affecting the Raglan Estate in favour of the appellantsought to be implied ; but before consideration is given to this question, itis convenient to state some matters of fact which gave rise to certain issuesin the Courts below.
The will of the testatrix was made on 3rd June 1910 before a well-known and experienced notary public A. W. Alwis. It appears thatsome dispute arose between the testatrix and her husband RichardSteuart Peiris as to the title to various properties, and on 31st May 1917a Deed of Indenture was entered into between them the occasion forwhich was the impending marriage of one of their daughters. This Deed,
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amongst other provisions, contained an agreement by the testatrix toconvey the Moragolla Group of estates (which included the Raglan Estate)by way of gift to her eldest son Richard Louis Peiris (the appellants’father) subject to a fideicommissary condition, and further agreements forthe gift of other pieces of land to others of her children. Before any stepswere taken to implement these provisions, Richard Steuart Peiris diedon 23rd October 1918. The testatrix herself died shortly after on 20thDecember 1918.
Richard Louis Peiris, the eldest son of the testatrix and her husband,was executor of the will of each of them and he initiated two testamentarycases (Nos. 6569 and 6571) in the District Court of Colombo, seeking adecision on certain questions of doubt as to which differences had arisenbetween the heirs. All matters in dispute, which appear to haveincluded the effect of the Indenture of 31st May 1917, were referred toarbitration, and in due course an Award was made. It is sufficient tostate that the arbitrator found that the Indenture of 1917 was binding onthe testatrix, her husband and their heirs, and that therefore the twotestaments did not deal with the properties dealt with by the Indenture.He also found that the Indenture was binding on the children of thetestatrix and her husband.
On 17th December 1925 the Award was made a Rule of Court by theDistrict Court of Colombo.
None of the present appellants was a party to the testamentary casesor to the Award. The eldest of them was in fact not bom until 1930.
The title of the respondent arises from a sale of the Raglan Estate in1951 by Richard Louis Peiris to one U. B. Senanayake, whose title, if any,the respondent acquired on 9th August 1952. Richard Louis Peiris diedin December 1954 and the present action was instituted on 18th March1959.
The relevant portions of the will of the testatrix, of 3rd June 1910, areas follows :—
“ I hereby will and direct that on the marriage of each of mydaughters (with the sanction and approval of my said husband) myexecutor shall set apart and convey to her immovable property of thevalue of one hundred thousand rupees subject to the conditionsfollowing : viz.
That such daughter shall not sell, mortgage or otherwise alienatesuch property or properties but shall be entitled during the term of hernatural life only to take enjoy and receive the rents income andproduce thereof. She shall not be at liberty also to lease or demise suchproperty or properties for any term exceeding four years at any onetime or to receive in advance the whole of the rents for such period andsubject to the further condition that on the death of such daughter
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such property or properties so given to her shall go to and devolve onher children in equal shares. Should such daughter die without leavingissue then I will and direct that the properties so given to her shalldevolve on her surviving sisters and the issue of such sister as shallthen be dead. Such issue taking only amongst themselves the share towhich another could have been entitled to or have taken if alive.
So long as my daughters or any of them shall remain unmarried andshall prove dutiful and obedient to my husband my executor shall payto each of them monthly a sum of two hundred and fifty rupees for hersole absolute use and benefit.
8a. I give devise and bequeath all the rest residue and remainderof my property and estate immovable and movable unto my sons inequal shares subject to the express condition that my said husbandRichard Steuart Peiris shall be entitled during the term of his life totake receive enjoy and appropriate to himself for his own absolute useand benefit all rents income produce and profits of all the said propertyand estate with full liberty to expend for the management cultivationand upkeep thereof all such sums of money as he on his absolutediscretion shall think fit and with full power and authority to my saidhusband should he deem it necessary to mortgage the said propertiesor any of them for the purpose of raising and borrowing money for anypurpose whatsoever and upon such terms and conditions as he shalldeem fit and proper and also subject to such conditions and restrictionsas my said husband shall according to his absolute discretion and wishthink fit to impose when conveying such property or properties to mysons.
86. Should any of my sons die unmarried or married but withoutleaving issue then and in such case I desire and direct that the share ofsuch dying son shall go to and devolve upon his surviving brothersand the children of any deceased brother such children taking onlyamongst themselves the share to which their father would havetaken or been entitled to if living subject however to the right of thewidow of such son who shall have died leaving no issue to receiveduring her widowhood one fourth of the nett income of the propertyor share to which her husband was or would have been entitledto hereunder.
8c. If any of my said sons shall die leaving children and also awidow then and in such case I desire and direct that the mother of suchchildren during her widowhood shall be entitled to and receive onefourth of the nett income of the property to which her children wouldbe entitled to under this my will.”
The numbering placed before the three paragraphs dealing with theresidue does not appear in the original will but has been added forconvenience of reference.
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It will be seen that while the will contains, in paragraph 86, a gift, of aclearly fideicommissary character, in the event of any of the testatrix’ssons dying without leaving issue (in the terminology of Roman DutchLaw a clause “ si sine liberis decesserit ”), there is no correspondingprovision, in relation to the sons’ original shares, w'hich deals expresslywith the event of a son dying but leaving issue, and in particular no giftin that event to the son’s children.
The appellants’ submission was that a fideicommissum in their favourought to be implied. They advanced the following propositions :—
That a “ si sine liberis decesserit ” clause, under Roman DutchLaw automatically gives rise to a fideicommissum in favour of thechildren mentioned in the “ conditio ” if the de cujus was a descendantof the testator.
That, if I is not correct, only slight indications from surroundingcircumstances, or from other provisions in the will are required inorder that such a fideicommissum should be inferred.
That if (contrary to H) very clear indications aliunde areneeded to support the inference of a fideicotnmissum, indications of thisquality are to be found in the present case.
Their Lordships commence their examination of these propositions byreference to the commentators. There is no doubt that support can befound in them for the appellants’ submissions. Grotius endorsesproposition I, though he does so in a negative rather than a positiveform : answering the question whether, where the conditio exists, theheir is burdened with a fideicommissum in favour of his childrenhe says :—
“ However, the generally accepted view is that this is not so unless
the children were descendants of the testatoror unless the last
wall contained some other ^indications from which a contrary intentionmight be inferred.” (The Jurisprudence of Holland : Tr. Lee (1926),p. 153.)
Voet discusses the question at greater length. In a section headed“ Person burdened by condition may alienate property left unless itappears that those given place under condition were called as heirs ” hestates that this (alienation) is not permitted “ should the children orothers who have been given place under condition appear by that veryfact to have been summoned by the testator to those properties in respectof which they have been so given place ” and continues by stating foursets of circumstances from which such calling may be inferred—as towhich “ watchfulness is certainly needed …. for cases are not lacking in
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which those who have been given place under a condition ought onaccount of various circumstances to be deemed to have been summonedunder the last will.”
The fourth of these is expressed as follows :
“ Finally Neostadius is authority for saying that with collateralsindeed …. who have been given place under a condition, the view ofthe Roman law demonstrated above (sc. that those who are ‘ posit.i inconditione ’ are not deemed ‘ positi in dispositione ’) ought …. to beapproved ; but that actual descendants of the testator who have beengiven place by him under a condition appear by our customs to havebeen summoned by the last will apart from any combination ofreasonable inference such as has been already described.” [Voet :Commentary Tr. Gane (1956) Vol. IV, Bk. XXVIII Tit 2 s. 10.]
The cautious statement of this fourth proposition is to be noted : it isplaced under the authority of Neostadius without direct endorsement bythe author. That Voet himself considered the point a doubtful one isshown by a footnote to the passage last cited in which he refers to Grotiusand Van Leeuwen on one side and to Sande’s disagreement on the other.His own view appears to go no further than acceptance of the relevanceof “ various circumstances ”. It may also be noted that the learnedtranslator, in an introductory note to the title, says that (inter alia)section 10 has been “ in modern times a veritable battleground on twomost momentous questions ” of which he states the present as one.
It is not necessary to refer at length to the writings of Van Leeuwen.In his Commentaries on Roman Dutch Law dealing with the special caseof descendants of the testator he says “ under the testator’s children,grandchildren are held to be so included (i.e., called to the inheritance)if from the circumstances it appears that such was the intention ”(Commentaries Tr. Kotze (1921) 2nd Ed. Vol. I Bk. Ill Ch. VIII s. 12p. 383). To what extent this reference to “the circumstances ” introducesan additional requirement, and if it does what the strength of it mustbe, does not appear. In his earlier work the Censura Forensis he appearsto approve the opinion expressed “ by others ” that even children andgrandchildren are not to be considered as summoned to the inheritanceby virtue of the condition “ unless unmistakable and very evidentinferences and necessary deductions from the testator’s intentionsrequire this, since …. if the testator wish to summon the latterto the inheritance by means of a fideicommissum he ought expresslyto say so, since in cases of doubt the presumption is always in favourof the heir and against the fideicommissum ” (Censura ForensisBk. Ill Ch. 7 s. 18).
Finally reference may be made to Professor Lee. After stating thatthe question (sc. whether a fideicommissum in favour of the childrenwould be implied from the condition “ si sine liberis decesserit ”) was
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disputed, he stated positively “ if however the testator was an ancestor,not only does the above-mentioned clause create a fideicommissum infavour of the children, but even if the clause had been omitted it will beread into the will with the same result.” (Lee, Introduction to RomanDutch Law 5th Ed. (1953) p. 379). For authority he refers to Voet andHuber and mentions Galliers v. Rycroft1 a case concerned with thequestion whether the conditio ought to be implied.
Thus it can be said that the commentators, while in some passagessupporting the implication of a fideicommissum in favour of descendantsof the testator, are not entirely agreed on the question whether thisimplication may or should be drawn from the mere existence of theconditio or whether additional circumstances indicating the testator’sintentions are required or whether, if so, slight, or strong indications areneeded. It becomes therefore necessary to enquire to what extent andin what form the views so expressed have been received into the law ofCeylon. The correct approach to a question of this kind is not now indoubt, since this Board has given its approval to the formulationof it by Professor Lee :
£C The works of the older writers …. have a weight comparable tothat of the decisions of the Courts, or of the limited number of * booksof authority ’ in English Law. They are authentic statements of thelaw itself, and, as such, hold their ground until shown to be wrong. Ofcourse, the opinions of these writers are often at variance amongstthemselves or bear an archaic stamp. In such event the Courts willadopt the view which is best supported by authority or most consonantwith reason ; or, will decline to follow any, if all the competing doctrinesseem to be out of harmony with the conditions of modern life ; oragain, will take a rule of the old law, and explain or modify it in thesense demanded by convenience. ” [Lee op. cit p. 14 approvedAbeywardene v. West 2.]
In the present case, it is not only the difference of emphasis of thecommentators, which leaves scope for clarification of the law by thecourts. There is also the fact that the principles on which testamentaryinstruments are to be construed must differ widely from those applicablein 17th century Holland. In modern Ceylon, they are or may be made(as in the present case) in the English language, against the backgroundof a mixed legal system, by notaries familiar with that system, for well-educated testators, themselves capable of understanding legal techniques.The courts at the present time are accustomed, rightly, to regard theirprimary task as being to ascertain the real intention of testators, from afair consideration of the language of the instrument as a whole, accountbeing taken no doubt of well-known and accepted rules but with libertyto mould them so as to give effect to rather than to defeat that intention.It appears in fact that this is the process which has been adopted in
1 (1901) A. C. no.
* (1957) 58 N. L. R. 313, 320 (J. C.).
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Ceylon. The modem law on the question now under consideration maybe said to have its origin not in a Ceylon decision but in a case decided in1908 by the Supreme Court of Good Hope. This case (Steenkamp v.Marais and others1) was concerned with a joint will by a testator and hiswife containing a gift in favour of their son Carel with (as was assumed)a si sine liberis decesserit clause in favour of another son. The questionwas whether Carel had power to mortgage the property subject to thebequest without regard to any interest of his minor children. On behalfof the latter it was claimed that the clause gave rise to an implied or tacitfideicommissum. Maasdorp J., after an examination of the relevantpassages of the commentators, decided against the implied fideicom-missum ; the decision of the case, he held, depended wliolty on the clausein question, there being nothing in any other portion of the will toindicate any other intention. In other words he decided that, even in acase concerned with descendants of the testator, the mere presence of theconditio, without other indication, was not sufficient to give rise to the. implication.
This decision has been followed in other South African cases. Theireffect has recently been stated as foEows :
“ This question ” (i.e. whether children placed in the conditionshould be deemed to be caEed to the succession) has frequentlybeen discussed in decided cases (compare Steenkamp v. Marais u.s., Exparte Richter 1945 OPD 297, Ex parte Kops and others 1947 (1) SA155 (0) ) and the conclusion to which the Courts have come, is that sucha provision creates no fideicommissum in favour of the children. Suchan intention can also not be deduced from the wording of the will (sc.this Avill) since in the analysis and interpretation of a will the mostimportant indeed the only object is to establish the intention of thetestator and then to give it effect ; to this all so-called rules of inter-pretation are subordinate. All the different indications must be takeninto account ■without laying too much emphasis on them. When thereis a reasonable doubt in regard to the actual intentions of the testatorthe Court w ill decide against a fideicommissum (Ex parte Sicanepoel andothers 1948 (1) SA 1141 at p. 1143 (0). Engelbrecht v. Engelbrecht enAndere 1958 (3) SA 571 (0) per Klopper A.J.) [Transl. Honore].
It remains to consider the extent to which the principle, now so firmlyestablished, in South Africa has been accepted in Ceylon. The first ofthe modern cases in which the Courts of Ceylon had to consider the effectof a si sine liberis decesserit clause, was Asiathumma v. Alimanchy2.The gift was in favour of the donor’s wife with a gift over, in the event ofher dying without issue to the donor’s brother-in-law. It was held thatthis did not create & fideicommissum in favour of any children his wifemight have and that she was free to deal with the property. This was
1 25 S. C. R. 483.
(1905) 1 A. O. R. 53.
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not a case involving a gift to descendants of the donor and the onlyrelevance of it is that it shows that the Court was prepared to considerthe terms of the will and the circumstances of the family before decidingthat a fideicommissum ought not to be implied.
Learned counsel for the appellants in an argument to which theirLordships are indebted, referred to a number of later Ceylon cases, priorto 1962, which he submitted have not sufficiently been taken into accountby the Supreme Court in their recent decisions.
In two of these, an implication has been drawn of a fideicommissumfrom the presence of the condition (Sandenam v. Iyamperumal1, Deuv.Jayawardene2), but neither of these cases contains an examination of theauthorities and in the latter at least reliance was placed on otherexpressions found in the will, Carolis v. Simon 3 requires somewhat fullermention, for there a, fideicommissum was implied and the case of Steenkampv. Marais considered. The Supreme Court did not differ from the latterdecision : it distinguished it upon the ground that the terms of the willshowed that the testators had in contemplation not merely children orgrandchildren but remoter descendants : the argument (invoked inSteenkamp v. Marais) that the testator’s intention might have been, in theevent of the birth of issue, to liberate their father from the bond offideicommissum so that he could confer upon them benefits by will oron intestacy was insufficient to meet the case : there was moreover anexpress prohibition against alienation which would serve no purposeunless to ensure devolution of the property upon the descendants. Therewas a sufficient manifestation of intention that the property shouldremain with the testator’s descendants. In Appuhamy v. Halloway4Wijeyewardene J. said that even where there is an express “ si sineliberis ” clause in a will the better opinion of the jurists appears to bethat a fideicommissum cannot be implied in favour of the children in theabsence of special circumstances.
In Thinoris de Silva v. Weerasiri et al. 5 there Avas a clear and sufficientindication shoAAdng an intention to create a fideicommissum butWijeyewardene J. again referred to the conflicting opinions of learnedwriters as to the effect of a si sine liberis clause taken alone.
These cases can hardly be taken as establishing a line of authoritywhich commits the Courts of Ceylon to a different principle from thatestablished in South Africa, or as preventing them from making a fullexamination of the relevant law for themselves.
1 (1916) 3 C. W. R. 58.3 (1929) 30 N. L. R. 266.
* (1927) 5 T. O. L. R. 107.4 (1943) 44 N. L. R. 276, 280.
5 (1949) 51 N. L. R. 467.
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This the Supreme Court undertook in De Silva v. Rangohamy.1 Itdecided in terms that the presence in a will of a si sine liberis decesseritclause does not per se create a tacit fideicommissum in favour of grand-children of the testator—even though the children referred toin the clause are descendants of the testator. In his judgmentH.N.G. Fernando J. mentioned the opinion, to the contrary, expressed byProfessor Nadaraja in his work “ The Roman Dutch Law ofFideicommissa ”, and referred to the conflicting views of the text-writers.He said that the view that tacit fideicommissum arises by implicationfrom the clause alone was reasonable and might have been accepted byCeylon and South Africa, but the law in both countries had developedotherwise. So far as the rationale of the presumption was concerned, hewas not convinced that a demonstration of pietas (sc. in favour ofdescendants) by the clause, raised the necessary inference of an intentionto call the descendants to the succession : the testator might havecontemplated that they should take their benefits in another way, e.g., bytransfer or devise from the ascendant legatee. He accepted, and indeedheld, that a fideicommissum in favour of descendants might be impliedif there was an intention to include them in the succession. This casewas followed by the Supreme Court in Rasammahv. Manar2, a caseof a deed of gift. Herat J. referred to the division of opinion amongthe commentators but reaffirmed the proposition that the trend ofdecisions in both Ceylon and South Africa was against implicationof a fideicommissum. from the clause alone : the intention to create afideicommissum might be construed out of the language used and fromthe circumstances of the case. Both of the two latter decisions werefollowed by the Supreme Court in the present case.
Learned counsel for the appellants submitted that the law in Ceylonhas not been settled by the two decisions of 1961—1963 and that it is stillan open question whether, the clause, per se, in the case of a gift todescendants, gives rise to a tacit fideicommissum. If the question is stillopen, then, it was argued, the weight of opinion among the commentatorsis in favour of the implication.
Their Lordships cannot accept this argument. In the first place theyconsider that the decisions of the Courts in Cejdon show a definite trend,following or parallel to those of the Courts of South Africa against theimplication of a fideicommissum from the clause alone. In cases wherethe implication has been drawn, this has been upon the basis (perhapssometimes insufficiently founded) that there was shown to be an intention
I
1 (1961) 62 N. L. R. 553.
* (1963) 65 N. L. R. 467.
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to create a fideicommissum. Secondly their Lordships consider that_thistrend is in accordance with the requirement that effect should be givento the intentions of testators which the Court ascertains from a fair readingof his testamentary dispositions in the light of the circumstances in whichhe was placed, rather than from the rigid application of rules of law.
As regards the law applicable in 1910 when the will was made, or in1917 immediately before the testatrix’s death, their Lordships are ofopinion that, while not so decisively settled as at the present time, thetendency referred to above was sufficiently shown to form the basis ofassumption upon which the draftsman would act. The decision inSteenkamp v. Marais (u.s.) was given in 1908 and at the least must havestood as a warning that if fideicommissa in favour of those mentionedin the condition were to be established, they should be establishedexpressly.
In their Lordships’ opinion the present law to be applied may besummarised in these propositions :
Where in a will (and mutatis mutandis the same would applyas regards deeds of gift), a bequest is made to a child of a testator,the mere presence of a clause, or condition, “ si sine liberisdecesserit ” does not per se create a tacit fideicommissum in favour ofthat child’s children.
Whether, in such a will, a fideicommissum is to be impliedis a matter of the testator’s intention to be ascertained from thedispositions in the will as a whole and from the circumstances inwhich the testator wras placed when he made it.
Such an intention must be clearly established : in case of doubtthe presumption is against the implication of a fideicommissum.
i
Their Lordships now turn to the will. It is first relevant to considerthe circumstances in which it w^as made. The testatrix then had threesons and three daughters, none of the latter being married. She had aconsiderable estate and was in a position to make generous provisionfor her children. The scheme of the will was that each daughter shouldon marriage receive property wTorth Rs. 100,000, and that the portion ofher estate allocated to the daughters should be preserved for the daughtersand their issue. The residue, subject to a life interest given to herhusband, w'as to go to the sons. The dispositions of this portion of theestate were to be such as to prevent an intestacy and to exclude collateralrelatives from benefit. Consequently there was to be imposed on theshare of each son an express fideicommissum w'hich, in the event of hisdying without leaving issue, would carry the share over to those of hisbrothers or their children. Provision was to be made for the sons’widows.
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In considering, whether, in the event of a son’s death leaving children afideicommissum over his original share was to be implied in favour ofthose children, one is met. at once, by two strong indications pointing toa negative answer :
There is, in relation to the daughters’ shares, an express andclearly expressed fideicommissum in precisely this event.
No prohibition, or restriction on alienation is imposed asregards the sons’ shares, though again an express restriction isimposed as regards the shares of the daughters.
The appellants attempted to explain this distinction by saying that thegifts were different : the daughters, severally, took a fixed sum : the sonson the other hand took the residue jointly. This may be so : but theresiduary bequest continues to provide for the devolution of each son’sshare—by means (in the event of his not leaving issue) of an expressfideicommissum. The absence of a further express fideicommissum(corresponding to that affecting the daughters’ bequests), should a sondie leaving issue, remains striking.
The argument based on this distinction is a very strong one : in face ofit an implication of a fideicommissum can only be drawn from some veryclear indication indeed. The indication most relied on (indeed the onlyindication of any weight) is derived from the clause numbered 8c. It isone which requires consideration. It appears to deal with the very casenow in question (“ if any of my said sons shall die leaving children ”)and it terminates with the words “ the property to which her childrenwould be entitled under this my will ”. These words it is said show, andshow with sufficient clarity, that it is supposed, or contemplated, that ason’s children do take an interest under the will : this supposition wouldbe falsified unless a fideicommissum were implied in their favour.
This argument has considerable prima facie force : it convinced thelearned District Judge ; it had some appeal to their Lordships. If no senseor meaning could be given to this clause but one which rests upon theinference of a fideicommissum in favour of the son’s children, then, evenin the face of the contrary indications, such inference might have to bedrawn. If on the other hand a meaning can be given to it, which doesnot rest upon this inference, or require it to be drawn, then such meaningshould be attributed ; if it is case of doubt which meaning it bears, thatmust be resolved against the fideicommissum.
Their Lordships consider that the clause can be interpreted in a mannerwhich does not require the inference. For it may be read as an appendixto the clause numbered 8b. That clause may be analysed as follows :
(1) If a son dies (a) unmarried or (&) married but without issuethen
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(2) his share goes to (a) his surviving brothers or (b) the childrenof any deceased brother : provided that (as regards case 1 (6) ) if thereis a widow, she is entitled to one-quarter of the income during herwidowhood.
The clause numbered 8c would then deal further with case 2 (6), in theadditional event of there being a widow (this gives a meaning to the words“leaving children and also a widow”). In other words the clause isdealing with accrued shares and not with original shares : the intentionbeing that as regards original shares a son who dies leaving children takesabsolutely and so can make his own provision both for his widow andfor his children.
This interpretation of the clause no doubt has its difficulties, bothof construction and in its application : it is not the only possibleinterpretation. But it is a possible interpretation, sufficiently possible tonegative the necessity to infer a fideicommissum against which such strongindications exist elsewhere in the will.
Their Lordships are therefore of opinion that no fideicommissumought to be inferred and that, in consequence, the appellants’ case mustfail.
There remains the second issue on which the appellant would alsohave to succeed if they were to make good their claim against therespondent. They would have to show that the Raglan Estate specificallyformed part of the share of their father Richard Louis Peiris in theresiduary estate, so as to be affected by the fideicommissum. As waspointed out in the Supreme Court this involves their making good theunusual claim that the Indenture and Award took effect so far as toconfer upon Richard Louis Peiris a specific interest in the Raglan Estate ;but failed co take effect (as against the appellants) so as to withdrawthe Raglan Estate from the will and subject it to the terms of the Award.In making good their contentions the appellants would be in somedifficulty from the form of their pleading and from the lack of positiveevidence as to what precisely was done, as regards the various properties,following upon the Award. The judgment of H. N. G. Fernando J. in theSupreme Court set out, very fully and fairly, the manner in which theappellants sought to overcome these difficulties : without coming to aconclusion upon them, the Court evidently considered that the appellants’contentions were not without weight. In these circumstances, and becausedecision upon the first issue determines the appeal, their Lordships donot think it right to express a concluded view on this issue.
Their Lordships will humbly advise Her Majesty that the appeal shouldbe dismissed. The appellants must pay the costs of the appeal.
Appeal dismissed.