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1903.May 7 .
FERDINANDTJS v. FERNANDO.
D. C., Colombo, 7,016.
Husband and wife—Joint will—Fidei commissum residui—Power of suroitingwidow to alienate by deed of gift or will—Estoppel.
M F and A S, husband and wife, made a Joint will in I860, whereinthe 4th clause provided that “ the survivor having done as he or shepleased with all our movable and immovable property, and havingpossessed the same, afterwards, on the death of both of us, it is our willthat whatever remains shall be divided equally among our children.”
In August, 1870, the spouses gifted certain property to their daughterEngeltine, who accepted the gift and stipulated that she would not" claim hereafter any inheritance out of the estate ” of the donors.
M F died in December, 1870, leaving him surviving the widow of A 8and twelve children.
A S, by deed of gift dated 8th October, 1894, granted three-fourthsof the estate as it then stood to three of her sons, and by will of thesame date the remaining fourth to another of her sons. The claimsof the remaining eight children appeared to have been satisfied orextinguished before their mother’s death in December, 1894.
Engeltina, claiming under the joint will of M F and A 8 to have ashare of the lands dealt with by A 8 by the deed and will of 1894,sought to have a partition of those lands.
Held, (1) that Engeltina was estopped by the terms of her accept-ance of the gift to her from claiming any inheritance out of the estateof her parents, and that her action for partition was not maintainable;(2) that the 4th danse of the will created a fidei commissum residui or afidei ■ commissum ^npon the residue of the estate which shall remainunspent at the death of the surviving sponse; (3) that when spousesby joint will vest their property in the survivor with power of alienation,subject to the restitution of the residue to their heirs of both spouses,the survivor need not find eautio or security for the restitution of atleast the fourth part of the estate, but is at liberty to alienate the wholein his or her lifetime, but not by will; (4) that' this power of alienationin the surviving spouse is only effectual in so far as the alienation ismade in good faith and not exercised with a view to defrauding thesubstituted heirs; and (6) that whether Adriana’s deed of donation of 8thOctober, 1894, m which she reserved to herself the enjoyment of therents and profits, but not the power to revoke the deed, was to be treatedas a testamentary disposition or not, her will of the same date was void,because a widow enjoying property with power of alienation, by virtueof the joint will of herself and her husband subject to a fidei commissumresidui, cannot dispose of the residue by will.
N this case, the original plaintiffs (Engeltina Fernando and herhusband Marselis Ferdinandus) prayed that the Court do
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decree that theey and the defendants were entitled to certain shares 1993,of a certain property, and that the said property be partitioned February 28among them. Both the plaintiffs having died, the administratorbf their estate (Henry Ferdinandus) was substituted in their place.
The question for determination was, whether or not tire originalplaintiffs were in common ownership with the defendants pf thelands sought to be partitioned.
It appeared that the parents of the original plaintiffs, ManuelFernando and Adriana Swans, made a joint will on the 81stLecember, 1860, the 4th clause of which ran as follows (as trans-lated by the Additional District Judge, Mr. Felix Dias): —
“ The survivor having done a6 he or she pleased with all ourmovable and immovable property, and having possessed the same,afterwards, on the death of both of us, it is our will that whateverremains shall be divided equally amongst our children.”
Out of this clause of the will arose the following issues agreedto by the parties: —
Had Adriana Swaris right, under the joint will of herselfand >her husband, to execute the deed No. 1,792, dated 8th October,
1894, in favour of the thirteenth, fourteenth, and fifteenth defend-ants, and id that deed, vest any interest in the said defendants? –
Had Adriana Swaris the right to dispose of any of theproperty of the common setate by her will of 8th October, 1894,and did the devise by her of one-fourth of the land in claim to thetenth defendant vest any right in him?
(8) Are plaintiffs estopped from asserting any claim to theproperty now in question by reason of any of the recitals containedin deed No. 8,435 of the 13th August, 1870, in favour of the firstoriginal plaintiff Engeltina, the mother of the administrator?
The Additional District Judge held that, according to his trans-lation of the clause in question, Adriana Swaris had the right todeal with the estate in any manner she pleased after the death ofher husband, including a right to deal with it by will; and thattherefore the donation to to the thirteenth, fourteenth, and fifteenth■ defendants mid the devise by will to the tenth defendant wereboth good and valid.
Te held further that as in 1870 Engeltina, the first plaintiff, whowas then married to the second plaintiff, had accepted a deed ofgift from her parents, which contained an undertaking by her andher husband that they should not claim hereafter any inheritanceout of the estate of her parents, the first plaintiff was estoppedfrom coming forward as an heir of the estate. The AdditionalDistrict Judge dismissed the plaintiffs’ action.
The substituted plaintiff appealed.
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1003. The ceoe was argued on the 23rd and 24th February, 1908, before
February 23 Moncreiff, J., and Middleton, J.and 24, andMay 7.
Perns, for the appellant,—
The District Judge is in error in supposing that there is anestoppel. The first plaintiff no doubt renounced her right ofinheritance to the estate, but her present claim is not as anheir to the estate, but as a devise under the will which began tooperate from a date subsequent to the date of the deed. Looking- at the terms of the will, the .surviving testator had the right ofenjoyment during life of the movable and immovable propertyof the common estate. The words of the 4th clause are: “Havingpossessed in any manner she pleases, what is left is to be equallydivided among our children.” This means that in the case oflands she could occupy or lease them, and whatever is left maybe (divided among the children. In D. C., Colombo, 56,846,
(VandeT8traaten, p. 203) a similar will was considered. The wordsthere were : “The survivor can do whatever he or she pleases and/possess all their property, movable or immovable. After thedeath of both of them all their property that may be remainingshall be divided equally among their four sons and two daughters.”The Supreme Court held that the survivor had no right at all to .alienate, as there were no words in the will expressly giving him suehpower. Therefore the deed of Adriana Swaris of 8th October,1894, is bad. The words “possess in any manner she pleases” can-not possibly include a power to devise by last will, as the survivorseems to have done in the case of the tenth defendant. Supposingthe survivor could alienate, the laws says there is a fidei commis-sum residui created here. Van Leeuwen’s Cemura Forensis, 3, 7,15, and 16, and Voet, 36, 1, 54. Where the fiduciary is requestedto leave the residue to the heir, he can be called upon to give secu-rity for at least one-fourth of the residue. Burge says (vol. II., p.133): “ If a devise were made to a person in trust that what remainedof the inheritance at the time of his death should be delivered toanother, ■ the devise would be required to give security that one-fourth should be remaining, but he might alinate the other three-fourths by any disposition inter vivos, although' not by his will.’.'Under the guise of the deed inter vivos Adriana Swaris attemptedto alienate by what was virtually a will. There was no residue atall left. Where alienation is allowable it must be exercisedresonably when necessary, and not wantonly. In the present casethe survivor gives the property to four only of the twelve children,and there was no reason for it. Van Leeuwen’s Commentaries,Kotze’s Translation, p. 382. The case reported in 2 C. L. R. 52 is
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distinguishable from the present ease. There the operation of the 1903.deed was not deferred till after death. The power of revocationwas expressly surrendered, and a deed which cannot be revoked isMay y.
a disposition inter vivos. But here the deed of gift reserves thepower of altering the condition and the power to revoke it. Thepresent deed can thus operate only after death. The case in 8 C.
L. R. 52 therefore does not apply.
Domhorst, K.O. (with Sempeyo, K.C.,) for respondents:—Itdoes not matter whether the inheritance renounced by thefirst plaintiff accrued to her by the deed or by an intestacy. Theintention of the parties was dearly in regard to the inheritanceunder the will. Acceptance by the fiduciaries is acceptance forhimself and thoBe coming after him (2 Burge, 124). The firstplaintiff’s renunciation therefore bound the children also (Voet,
36, 1, 65.) The case of Venderstraaten turns upon a translation ofcertain Sinhalese words which had been made for the Judges ofthe Supreme Court, which are very unlike the words rendered byMr. Felix Dias, the Additional District Judge. His translation isdifferent to the one filed in D.C. 56,846. The authorities cited forappellant do not touch the case of a will between husband andwife. In such a case, the survivor need not leave a one-fourth norgive security for it. 2 Burge, 32; Voet, 36, 1, 56; Censure Forensis,
Ford’s Translation, p. 9; Grotius Opinions, 223. The next pointis whether the deed is an act inter vivos. It is. The words of thedeed give title forthwith, but reserve the power of altering thecondition. These words do not derogate – the words of the grant.
That it is not a will may be well inferred from the circumstancethat no Court having testamentary jurisdiction will admit it toprobate. Nor is the deed revocable. The power to revoke isnot reserved. What is- reserved is the power to alter the condi-tion. It is- therefore a gift immediate and outright uponconditions which may be changed. The case of Neina Mohamado in2 C.L.R. 50 is exactly in point. Adriana Swaris was empoweredto do what she liked. She chose four children out of twelve forher benefaction. It would have sufficed if she had chosen onesingle member of the' family. The grant of properiy to four outof a class of twelve cannot be considered wasteful or wanton.
The case reported in Vanderstraaten must be looked upon in thelight of a pious opinion of the Supreme Court—first, because theJudges of those days were in the habit of writing their judgmentsbefore they heard counsel; and second, because the translation ofthe Sinhalese was inaccurate.
Peiris, in reply.
Cur. edv. vult.
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1903. 7th May, 1903. Monoreiff, J.—j'n^Tjni This was » suit for partition. The Judge has dismissed it onMay i. the ground that the plaintiffs had no tilde to any portion of theproperly sought to be partitioned.
Engeltina. the first plaintiff, was the wife of the second plaintiff.Husband and wife are both dead, and are represented by theadministrator of their estate. Engeltina waB a daughter of ManuelFernando and Adriana. Swaris, who executed a joint will on the81st December, 1860. Her four brothers, W. Johannes, JohnHenry, Martinus, and James Fernando, alone out of the twenty-one defendants answered and appeared. When Manuel Fernando*died in 1870 he was survived by twelve children and his widow.There seems to be no doubt that the claims of all these children(if we except Engeltina and the four respondents) upon the estateof their parents were satisfied or extinguished before the death oftheir mother, in 1894.
We have two translations of the 4th clause of the joint will.The first, which is put forward by the appellant, runs thus:—“After the death of one of us the survivor can possess all themovable and immovable properly belonging to us according to hisor her pleasure, and whatever property remains after the death ofboth of us shall be equally divided among our children.”
The Judge says that the following is a literal translation of theclause:—“The survivor having done as (he or she) pleased withall our movable and immovable property (and) having possessed(the same), afterwards, on the death of both of us, it is our willthat whatever remains shall be divided equally amongst ourchildren.”
On the 13th August, 1870, the spouses executed a transfer ofcertain property to their daughter Engeltina in consideration oftheir natural love and affection for her, and Engeltina renouncedall claims to inheritance out of their estate.
Manuel Fernando died in 1870. His widow died in 1894, havingdisposed of the whole of the property remaining, by deed of giftand by will, both dated the 8th October, 1894, in favour of her sons,the four respondents.
The respondents say that Engeltina is concluded by her renun-ciation. I was at first attracted by the argument that, althoughEngeltina renounced any claim to inheritance, and that at a timewhen the joint will had been executed and both parents werealive, yet the joint will not having been altered, and speakingfrom the death of the disposing spouses, it was impossible to saythat the spouses had not changed their intention and determined
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to give Engeltina her share of the inheritance in addition to thedonation made in their lifetime.
The joint will of Manuel Fernando and Adriana Swans wasexecuted on 31st December, 1860; the deed of donation to' Engel-tina was executed on 13th August, 1870; Manuel Fernando diedon 12th November, 1870. Therefore, both of the disposing spouseswere alive on the ,13th August, 1870. Engeltina signed with across, testifying that she did thereby thankfully accept the abovegift; and the donation was made and accepted subject to thecondition and restriction that Engeltina was not to “ claim here-after any inheritance out of the estate of us, the said WattumullegeManuel Fernando and B. Adriana Swaris.”
February 23and 24, andMay 1.
Property which passes by will falls within the scope of theword inheritance (hcereditas). Engeltina bound herself not tochurn any inheritance which, according to the terms of a will(whether executed at, or to be executed after, the date of herrenunciation); would pass to her out of the estate of her parents.I cannot accept the qualified meaning put upon the word “ claim ’’by Mr. Peiris. Engeltina claimed the inheritance, whether sheasked for it as due ab intestato or as left to her by will. To adoptthe appellant's view of this question would be to admit, not onlythat Engeltina did not renounce her claim to what her parentshad left her in their executed joint will, but that no renunciationin these terms could include inheritance by will. I see no reasonfor thinking that the donors and Engeltina .spoke of inheritancein a restricted sense.
On tins ground, therefore, I think that there was no -cause ofaction. But, suppose Engeltina was not concluded, did the 4thclause of the joint will give Adriana Swaris, the surviving spouse,power to alienate, and did Adriana Swaris in fact alienate in herlifetime? I think there is little difference in effect, if any,between the translations of the 4th clause. The clause seemsto me to create a fidei. commissum residui, or a fidei commissumupon the residue which shall remain unspent at the death of thesurviving spouse. In general, the fiduciarius must hand over one-fourth to the substituted heirs and give security (cautio) for itsrestitution; but it appears from Voet (36, 1, 66) that, where spousesby joint will vest their property in the survivor with powerof alienation, subject to the restitution of the residue to theheirs of both spouses, the' survivor is not called upon to findcaution for the restitution of a fourth, and is at liberty to alienatethe whole in his lifetime, but not by will. According to Van-Leeuwen (Cehsura Forensis, pt. I., bk 3,. chap. 7, 15 and 16) thispower of alienation in the surviving spouse is only effectual in so
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February S3'and Si, andMay 7.
far as the alienation is made in good faith; it cannot be exercisedwith a view to defrauding the substituted heirs. Voet (36, 1, 34)says: Factae per fiduciarium dolosae donationes, fidei commissiintern ertendi ac fidei commissarii fraudandi causd, probandat.
non sunt Ut tamen in dubio animus intervertendi fidei
oommiesi in fiduciario non praeaumendus sit, sed probatio exindiciis manifestis per eum, qui se fraudatum ait, fieri debeat.But there is no such probatio here. On the contrary, it is saidthat all the substituted heirs, except the four. respondents, wereothewise provided for in their mother’s lifetime.
Finally, it was urged that the deed of gift of 8th October, 1894',by Adriana Swaris to her sons John, Henry, Martinus, and Jameswas a testamentary document and of no effect, because the fidu-ciariua could not dispose of the residuum of the property by will—that it was not an alienation sanctioned by the joint will of 1860.By the deed Adriana Swaris granted, assigned, transferred, setover, and assured “ a fourth of the property to each of the grantees.”She was to “ take, receive, and enjoy ” the rents, profits, &c., and tohave the power of altering or modifying the conditions stated inthe deed. Each grantee had power to ” give or appoint ” his shareby last will or deed among his children or descendants accordingto stated terms. On the failure of his line, his share was to pass tothe two brothers who were his co-grantees, or their descendantson stated terms.
The three grantees signifiedtheir acceptanceby signingthe
A donation is a voluntary delivery to another without cause.By a donation inter vivos the donor divests himself gratuitouslyat the time and irrevocably of the subject of donation to anotherwho accepts it. From the words used in the deed and the limitedpower of appointment, which the donees could exercise in the life-time of the donor, it mightbethought thatAdriana Swaris
divested herself of the property and delivered it to her sons. Shereserved no power to revokethedeed. It wassuggestedthat
there was no delivery, because she reserved to herself the enjoy-ment of the rents and income. A donation, however, may beconditional, and I. do not know that it is invalid because the donorstipulates for the enjoymentofthe incomeduring hislife.
Reference was made to two cases mentioned by Van Leeuwen(Censura Forensis, pt. 1., bit. III., chap. 8, 16). One of these casesarose in connection with the will of Hugo Koedyk, in his lifetimeBurgomaster of Leyden. Koedyk’s wife instituted him heir to allher property, with full power of alienation, provided that half ofthe residuum at the time of his death should be enjoyed by her
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relations. Koedyk, after his wife’s death, made oyer to his msid IMS.servant by deed, in consideration of her faithful services, the full
and xa f|jt(|
right in an obligation of 4,000 guilders, reserving the yearly May 1.income thereof to himself. The donation was held to be invalid. TI|lll'^jjMI „but, so far as I understand, on the ground that it was made in fraud j.of the heirs designated by the will of the wife. I cannot see howthe deed of the 8th October, 1894, was in fraud of the substitutedhein. With the exception of the four respondents, they had allrenounced on receiving compensation, and the four respondentsset up the deed. For all I know, the deed may have been executedmortis causa; it is dated the 8th October, 1894, and AdrianaSwans died on the 2nd December, 1894, but there is no suchallegation. I hesitate to say that it was a testamentary disposition.
– The will of the 8th October, 1894, which left the remainingfourth of the property to W. Johannes Fernando, the tenth defend-ant, is, I imagine, void on the principle that a widow enjoyingproperty with power of alienation by virtue of the joint will of herhusband and herself, subject to a fidei commissum residui, cannotdispose of the residue by will. But, if the plaintiffs are excludedby Engeltina’s renunciation, the matter does not concern them.
I think that their action was rightly dismissed with costs, andthat their appeal fails.
Middleton, J.— .
I have had the advantage of reading my brother’s judgment, andshall not therefore refer to the facts of the case, which are theresufficiently set out.
The first question is whether the appellants on behalf of thechildren of Engeltina, by Engeltina’s action in becoming a partyto the deed of 13th August, 1870 (D 2), are now estopped fromclaiming any share in the joint estate of Manuel Fernando andAdrian Swaris, the father and mother of Engeltina. The jointwill of these two persons, which was dated 31st December, 1860,would take effect first on the death of Manuel on the 12thNovember, 1870. The will disposed generally of “ all the movableand immovable property belonging to them ” at the time of thedeath of the “first of them.
In my opinion, at the death of Manuel the property mentionedin D 2 had already been disposed of, and was not therefore subjectto the will. The condition of its alienation as it affected Engel-tina was that she should not “ claim any inheritance ” out of theestate of her father and mother. The meaning of the word“ inheritance,” according to counsel for the appellants, is restrictedto a derivation ab intestaio, and he argues that, therefore, the
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February S3and Si, andMay 7,
testators under the will intended that Engeltina should benefitthereunder as weill as by the deed. The will, however, was inexistence when the deed was executed, and remained unaltered,from which the inference may be drawn that the testators, as par-ties to the deed, thought and intended that the word “ inheritance ”had and should have the wider meaning given to it in Van Leeu-.wen (Koine's Translation, vol. II., p. 312), or it seems to me thatafter the execution of the deed the will should have been .altered.
In my opinion, the word “ inheritance ” would include not onlyproperty derived by intestacy, but also by will, a demand to beconsidered one of the persons entitled to the residue under a willcannot, it seems to me, be otherwise than a claim of inheritanceout of the estate. Putting on one side, therefore, the meaningattributed by the learned counsel to the word “ claim ” as sophis-tical, I hold that the appellants are estopped by the deed of 13thAugust, 1870, from making any claim to any share in the residueof the estate of Manuel Fernando and Adriana Swaris. The factthat by the terms of D 2 the donors renounced the life interesthitherto reserved to them, seems to me also to dispose of the argu-ment that D 2 would be invalid as it could only take effect as a will.
If, however, the heirs of Engeltina are not barred by the deedof 1870 (D 2), we have to consider what is the meaning of the Words,the translation of which are in dispute in the will of 1860 (D 1).
Looking at the translation of the 4th clause of page 2, the correct-ness of which is contended for by the appellants, it seems to methat the words “ whatever property remains ” contemplate apossible disposition of part of that which was to be possessedaccording to pleasure. They would hardly, I think, operate toprevent the sale of a portion of the estate for the debts of. thesurviving testator upon the judgment of a competent Court. Iftheir meaning extended to this, it would be difficult to say that itdid not embrace a right to alienate at pleasure at any rate up to acertain extent.
These words inferring a power of disposition in favour of theco-testator or co-testatrix are, however, limited by the restriction asregards the residue for the benefit of the joint testator’s children.
There is no prohibition against alienation, but there are personsdesignated on whom a contemplated residue is to devolve.
The intention of the co-testators was, therefore, in my opinion,that the survivor of them should enjoy the joint estate with all .the powers of an absolute owner, save and except the right oftestamentary disposition thereon; such powers to be exercisedwithout wanton waste, giving away or spending. Van LeeuwenKotee’s Trc.nulation, vol. I., p. 381.
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This is a form of fidei commie sum, which is known I believe as 1903.fidei commissum residui, and is common in the case of husband February 13
-/lAfl/j 24 cttto
and wife, the survivor of whom is not bound to make an inventoryMay 7.
or account (Van Leeuwen, id. vol. I., p. 386), but according to■
the text of Van Leeuwen’s Oensura Forensis, translated into Mn>D^ET0N«English (chapter VII., bk. III., p. 94), the power of alienation islimited to the discretion of a trustworthy person, who it hasbeen decided is not permitted to alienate more than three-fourths.
As regards thetranslation ofthe 4thclause,I shouldbe
inclined to acceptthat laiddown by thelearnedJudge inthe
District Court, considering his undoubted knowledge of his ownlanguage, and thin unquestionably discloses a power of alienationin the surviving spouse, but, as I have said before, a right toalienate is, in my opinion, deducible from the wording of thetranslation put forward by the appellants themselves.
The decision of the Supreme Court in the case (D. C., Colombo,
56,346) relied on by counsel for the appellants and reportedin Vanderstraaten,p. 203,wasbased onthe ground thatthe
will disclosed no express power to alienate, which theory, Ipresume, was derived fromthepresumedpreciseterms ofthe
Sinhalese words used, but if the English words be taken after“fifthly” at p. 203, there is strong reason to suppose that thelearned District Judge was right in his view of the case.
We then come to the question whether the conveyance by deedof gift of October 8, 1894, by Adriana to her sons John, Henry,
Martinus, and James was of no effect, as in fact amounting to atestamentary disposition of the residue contrary to the intentionof the fidei commissum.
In my opinion, there was a donation which it was intended bythe parties should not take effect until after the death of Adriana.
If this is so, it practically amounts to a testamentary dispositionwhich would not be permissible.
My opinion is founded on the terms of the paragraph of thedocument No. 1,792, marked “ first,” where it is covenanted thatAdriana is “ to take, receive, and enjoy the rents, profits, and incomeof the premises ” purporting to be assigned during her lifetime,and “ to have the right,” which is thereby expressly “ reserved, ofaltering or modifying the conditions ” therein “ contained,” andof “ creating or imposing any further condition in respect of thepremises gifted,” or the rents, profit or income thereof, withoutassigning any reason therefor, and “ that after her death the saidpremises hereby assigned shall devolve on the said John, Henry,” &c.
The property purporting to be assigned is not to devolve tillafter the death of the donor, and the donor is to take the rents
February 13and 24, andMay 7.
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and profits during her life, and to have the power of imposing anyconditions she chooses.
In my view, nothing but a tenancy at will was granted underthis deed by Adriana to her three sons; the property was only i»devolve on the death of the would-be donor, and this, I thinly isan attempt to make a will by way of deed of gift.
Although I have the misfortune to disagree with my learnedbrother on this point in the case, I fully agree with him that thewill of October 8, 1894, would be also void.
Taking, however, the view I do on the first part of the case, thatthe appellants are estopped by the deed of 1870 from making anyclaim on the residue of the estate of Adriana and Manuel, I thinirthat their appeal should be dismissed with costs.
FERDINANDUS v. FERNANDO