FERNANDO et al. v. ALWIS et al

043-NLR-NLR-V-37-FERNANDO-et-al.-v.-ALWIS-et-al.pdf


Fernando v. Aliois.
201
1935
Present: Macdonell CJ. and Maart'ensz J.
FERNANDO et al. v. ALWIS et al.
137—D. C. Colombo, 51,422.
Fidei commissum residui—Joint will—Survivor's interest—Power of survivor
to alienate—Donation by survivor—Prejudice to heirs—Gift to minors—
Validity of acceptance—Renunciation of gift.
Where a joint will contained the following clause : “ All our movableand immovable property, held by us both, after the death of one of us,the survivor shall possess doing whatever he (or she) pleases and there-after anything that is left, after the death of both of us shall be dividedby the children of us both equally.”,—
Held, that the clause created a fidei commissum residui and that thesurvivor had the right to alienate the property of the estate subject tothe rights of the fideicommissary heirs in the residue.
A donation of such property by the survivor is not ipso facto voidbut it may be avoided on the ground that it has prejudiced the heirs.
Where a deed of gift in favour of five brothers, four of whom wereminors, was accepted by the major brother (J. F.) and another person(H. S.) in the following terms : “ We the undersigned J. F. and H. S. forand on behalf of ….(i.e., the minor donees) do thankfully
accept the above gift ”,—
Held, (1) that the gift was not accepted by J. F. on behalf of hisbrothers ; (2) that H. S. not being a person entitled to accept the gift onbehalf of the minors the gift to the minor donees was invalid for want of avalid acceptance.
Acceptance of a deed of gift may not be presumed merely becausesubsequent to the gift the donees renounced their rights under the gift.
HE plaintiffs sued for declaration of title to an undivided half share
J- of an allotment of land with the buildings bearing Nos. 1-12,Gasworks street, and 135-149, Dam street, Colombo.
The premises originally belonged to Manuel Fernando, who with hiswife Adriana Suwaris executed a joint will No. 2,051 (P 1). datedDecember 31, 1860, whereby, according to the plaintiffs, all their movableand immovable property were devised and bequeathed to the survivorwith power to deal with it as he or she pleased.
Adriana, who survived her husband, duly proved the will, and by deedNo. 232 dated November 4, 1871, donated the premises to her five sons—(a) Johanes, (b) Theodoris, (c) John Henry, (d) Marthinus, (e) James—to the exclusion of all females. Theodoris died in 1874 a minor. JohnHenry and Johannes left no male issue. James died on July 28, 1931,leaving two sons, the plaintiffs. Marthinus, who has three sons, is nota party to the action. The case of the plaintiffs was that James andMarthinus each became entitled to a half share and that they succeededto the share of their father on his death.
It would appear that Adriana by deed No. 619 dated January 21, 1884,revoked the deed of gift No. 232 and that the donees, four of whom weresurviving, renounced their rights under it.
Adriana, however, gifted again three-fourths of the premises to JohnHenry, Marthinus, and James by deed No. 1,792 dated October 8, 1894,reserving to herself the life interest. Adriana on the same day by will
T
202
Fernando v. Alwis.
No. 1,793 bequeathed the remaining one-fourth to Johannes subject tocertain conditions. In accordance with this deed of gift the brothersand their descendants possessed the property. The defendants, who claimfrom the female heirs of John Henry, dispute the title of the plaintiff onthe following among other grounds: —
They deny that Adriana had a disposing power under the joint will
in pursuance of which she executed the deed of gift No. 232.
They challenge the validity of the deed of gift on the ground that
it was not duly accepted by the minors.
The learned District Judge held that Adriana had only a usufruct underthe joint will and that she had no power of alienation.
H. V. Perera (with him N. K. Choksy), for plaintiffs, appellants.—Thefirst point arising in this case is stated in issue 6. Had A. S. the rightto execute deed No. 232 of November 4, 1871? A. S., as survivor underthe joint last will (PI) became entitled, inter alia, to the property in disputeand her right to de£l jyith it is given in clause 4 of P 1, the translation ofwhich is as follows?k£?‘ After the death of one of us the survivor can possessall the movable and immovable property belonging to us according to his orher pleasure and whatever property remains after the death of both of vsshall be divided equally among our children”. The children only get “what-ever property remains ”. This impliedly gives the survivor full power ofalienation of the whole or any part of the property (Brown v. Rickard.')This clause was construed in this sense in Ferdinandus v. Fernando'.and it was held in that case that the clause created a fidei commissumresidui. Although the survivor is not directly instituted heir the domi-nium according to the terms of the clause must necessarily rest in thesurvivor because no interest vested in the children as long as the survivorwas alive. “ Whatever property remains after the death of both of usshall be divided equally among our children ” gives the children ahinterest only after the death of the survivor. (Joachinoe v. Robertu* andOmer Lebbe Marcar v. Ebert. ') The dominium in a case like this must bedeemed to have been in the survivor as the dominium cannot be inabeyance (Voet, bk. VII., art. 9, t. 1 (Searle and Joubert's Trans, p. 11) ).The 4th clause of the joint last will creates a fidei commissum residuiand A. S. had a right to alienate the property of the estate.
The second point in the case is whether deed No. 232 was accepted byJohannes and Haramanis or either of them on behalf of the four minors,if so, is such acceptance valid? The acceptance in the deed is as follows: —“ We, the undersigned Watumullegey Johannes Fernando and Beru-wellegey Haramanis Suwaris, for and on behalf of …. accept
th.e above gift ”. Johannes is the major brother of the minor doneesand on the face of the deed there is a clear acceptance by him for himselfand for and on behalf of his minor brothers. It has been held that abrother who is a major may accept a deed of gift on behalf of himselfand his minor brothers or sisters (Lewishamy v. Cornelis de Silva ’followed in Bindua v. Untty"). See also Babaihamy v. Marcinahamy
' 2 Jula 167
6 N. L. R. 328.
(1890) 9 S. C. C. 101.
4 (1893) 3 Cey. Law Rep. -5.s (1906) 3 Bal. Rep. 43.
« (1908) 13 N. L. R. 259.
i (1910) 11 .V. L. R. 232.
Fernando V. Alwis.
203
It may be argued from the acceptance clause that Johannes acceptedfor himself, and Haramanis Suwaris accepted for and on behalf of theminors. The law is clear that in the case of a gift to a minor acceptanceof th^gift may be (1) by the minor himself or his agent, (2) by the naturalor legal guardian of the minor or by someone in the position of a parent,(3) by any one at the request of the donor, and (4) by any one on behalfof the minor in which case the acceptance must be adopted by the minorhimself at a later stage. See Maasdorp, vol. I., pp. 267; 1 Kotze’s VanLeeuwen 13, 104; Voet XXXIX. 5, 12, In this case there is evidence thatat the date of the donation the father of the minors was dead and that Hara-manis Suwaris who accepted on behalf of the minors was in the positionof a parent and acting as a guardian of the minors. Even in the absenceof such evidence acceptance by Haramanis must be presumed to havebeen at the request of the donor herself or the minors. It is now—•sixty years after the donation—well nigh impossible to bring evidenceof the circumstances under which Haramanis accepted and in theabsence of such evidence the law must presume a valid acceptance.(Francisco v. Costa *, Government Agent, Southern Province v. KarolisLokuhamy v. Juan*.) In any case, the acceptance by Haramanis onbehalf of the minors makes the gift irrevocable by the donor and thealleged revocation of the gift by her on deed P 4 is void as against theminors. Even if the acceptance by Haramanis is that of a completestranger, the conduct of the minors is such that an inference of the adop-tion of the acceptance may be made from it. It is significant that P 4is not merely a revocation by the donor but also a renunciation and dis-claimer by the minors of their right, title and interest in, out of, or uponthe said property under and by virtue of or in respect of the deed of giftNo. 232 of November 4, 1871, and a grant, retransfer and reassignmentof their said interests to A. S. the donor. There cannot be a disclaimerand renunciation and a consequent retransfer and reassignment of aninterest unless such interest had devolved upon them. It is sufficienttherefore for the purposes of this case to say that at some point of time,may be immediately before the execution of P 4, the minors adoptedthe deed of gift P 2 and by such adoption ratified the acceptance byHaramanis Suwaris for and on their behalf. See Tissera v. Tissera *, andWickramasinghe v. Wijetunge The deed of gift No. 232 created a fideicommissum in favour of the male heirs in the male line of the five sons ofA. S. When Johannes accepted the gift he had a vested interest inone-fifth and a contingent interest in four-fifths. Acceptance by himmay be regarded as an acceptance of the whole property subject to theconditions of the deed ofi gift, namely, that the property should devolveon the male heirs of the five sons. Therefore the acceptance by Johannesalone will enure to the benefit of the plaintiffs in this case who are themale heirs in the male line of the donors’ five sons. In any eventacceptance by Johannes is good as regards one-fifth of the propertyand half of one-fifth will devolve on the plaintiffs according to the termsof the deed of gift No. 232.
■ 8 8. C. C. 189.3 Ram. Rep. [1872, 1875 and 1876) 215.
= (1896) 2 N. L. R. 72.* (19081 2 Weer. Rep. 36.
* (1913) 16 N. L. R. 413.
204
Fernando v. Alvris.
The third point in the case is whether deed of gift No. 232 created onefidei commissum or five separate fidei commissa. The deed of gift clearlydonates the whole property to the five sons and after their death to thedescending heirs in the male line to the exclusion of all daughters, grand-daughters or other remote descendants of the five sons as long as thereshould be a male heir or heirs in the male line. It does not in termsdonate a one-fifth share to each of the donees nor can the intention to doso be inferred. The terms of this deed cannot be distinguished from theterms of the deed of gift considered in the case of Carlinahamy v. Juanis'which was held to create one fidei commissum. The property is to devolveon the male heirs after the death of the donees. “ After their death ”should be read as “ after their respective deaths ”. See Abeyratne v.Jagaris Therefore on the death of James his share devolved on theplaintiffs, and the learned District Judge should have answered the issueNo. 8, namely, “ Did all the interests conveyed under deed No. 232 vest inMarthinus on the death of his brother James? If so can the plaintiffsmaintain this action? ” in favour of the plaintiffs. The issue of pre-scription has also been decided against the plaintiffs. No authority isnecessary for the proposition that if deed No. 232 created a valid fideicommissum the interest devolved on the plaintiffs only on the death oftheir father, and prescription begins to run against them only from thatdate. It is in evidence that plaintiffs’ father died only in 1931.
Keuneman (with him Canakaratne), for the third and fourth defendants,respondents.—The fourth clause of P 1 gave A. S. only a usufructuaryinterest. The terms of the present will are almost indentical with theterms of the will construed in D. C. Colombo, 56,846, reported in Vander-straaten’s Reports, 203. In that case the Supreme Court held that thesurvivor was only entitled to possess and not to alienate. A similar clausewas construed to give the surviving spouse merely a usufructuary interest(Weerasinghe v. Gunatilleke 3). The decision in Ferdinandus v. Fernando 'on this point was a mere obiter dictum and therefore not bindingon this Court. Even if P 1 creates a fidei commissum residui A. S. hadno power to alienate the property by way of gift. The right of alien-ation of a fiduciary heir under a fidei commissum residui do notextend to donations. See 1 Kotze’s Van Leeuwen (1st ed.), pp. 380, 381,and382, and the caseofMr.Koedykreferred to therein;Voet, bk
XXXVI., tit. 1, s. 54, (Macgregor’s Trans, p. 118). With regard tothe second point it is clear from the acceptance clause that Johannesaccepted forhimself andHaramanisonbehalf of the minors.It is
impossible to argue on a clear reading of the clause that Johannes acceptedfor and on behalf of the minors because in that case Johannes has notaccepted for himself. Haramanis has accepted for and on behalf of theminors and there is no evidence that he was a legal guardian; nor is thereevidence that he was authorized to do so by the donor or by the donees..It cannot, as argued by the plaintiff’s Counsel, be presumed that Haramanishad such authority. A presumption of acceptance can only be madewhen there are circumstances to justify it (Lokuhamy v. Juan (supra) ).There must be some affirmative evidence of acceptance on the minors’
I (1924)2G N. L. R.129.s 1* K- R- «*■
» (1924)26 N. L. R.181.4 « K. /- R. 328.
Fernando v. Alwis.
205
part (Wellappu v. Mudalihamy'). There is further no evidence that thedonees acted on the deed of gift. On the contrary the donor remainedin possession and dealt with the property as her own. See lease 1d2 ofDecember 30, 1876. Deed of revocation P 4, the plaintiffs’ Counselargued, was entered into on the footing that the deed of gift was actedupon. There is nothing in the terms of P 4 to suggest that, and even aninference to that effect cannot be drawn from a disclaimer and renuncia-tion. Further, P 4 was executed because doubts had arisen as to whetherthe deed of gift was validly executed. All along the deed of gift wasconsidered as giving no rights to the donees. The plaintiffs must failon the question of acceptance of the deed of gift No. 232.
JV. E. Weerasooria (with him D. E. Wijewardene), for first defendant,respondent.—The last will P 1 does not directly institute the survivor heir.In such a case no fiduciary interest passes to the survivor. The case ofBrown v. Rickard (supra) was decided as creating a fidei commissum residuibecause the survivor was instituted heir. There is no significance in thewords “ whatever property remains ”. These words do not giveimpliedly a power of alienation. Botha v. Vander Vyver- followed inCowen v. Estate Cowen*. The effect of P 1 is to continue the communityafter the death of one spouse between the survivor and the children.The survivor in such a case takes only a usufructuary interest.
Even if P 1 creates a fidei commissum residui A. S. had no power todonate. Voet in bk. XXXVI. tit. 1, s. 54, says “ according to ourpresent practice the better view is that donations should be disallowedwhich are fraudulently made for the sake of curtailing the fidei commissumand defrauding the fideicommissary ”. If by the donation the fidei-commissaries are prejudiced then such a donation is void according tolaw. In this case Johannes and John Henry would have succeeded to ashare absolutely under the last will but according to the terms of thedeed of gift they get it burdened with a fidei commissum. There issufficient prejudice caused to Johannes and John Henry so as to avoidthe deed of gift.
We have here a long series of decisions on the question of acceptance ofa deed of gift in favour of a minor. Whatever be the Roman-Dutch lawon this point our law is embodied in these decisions. See the casesreported in (1872-75-76) Ram. Rep. 215, 8 S. C. C. 189, 2 N. L. R. 72,12 N. L. R. 1, 11 N. L. R. 161, 11 N. L. R. 232, 3 A. C. R. 4, 13 N. L. R.259, 3 Bal. 43, 2 Weer. 36, 2 S. C. D. 36, 4 Bal. 110, 3 C. A. C. 80, 34N. L. R. 57, 6 N. L. R. 212, 6 N. L. R. 233, 33 N. L. R. 44, 1 Cur. L. R. 73,2 A. C. R. 13. Acceptance in this case by Haramanis for and onbehalf of the minor donees is not a valid acceptance according to ourlaw and no interest passed to the plaintiffs in this case under that deedof gift.
Even if deed of gift No. 232 is validly accepted by the donees thedonor can revoke it with the consent of the donees if the fideicommissarydonees had not accepted it. At the date of the deed of revocation P 4the fideicommissaries had not come into being and therefore the revocation
‘ (10m n N. L. R. 233.- 25 S C. R. (South Africa) 760.
3 {1932) S. A. Law lleportx. Cape. P. D. 39.
37/17
206
Fernando v. Alto is.
being before their acceptance was a valid revocation. See 7 N. L. R. 123and 2 Nathan 1031. If P 4 is invalid as a deed of revocation it effecteda compromise binding upon the fideicommissary donees including theplaintiffs. (Voet, bk. 11, tit. 15, art. 8 (Buchanan’s Trans, p. 366).)
The deed of gift No. 232 creates five separate fidei commissa. It is truethat it does not in terms donate a one-fifth share to each of the doneesbut the intention to do so may be inferred from the words *• their lawfuldescending heirs in the male line ” in the habendum and from the words“ and their respective heirs ” in the operative clause. There are fiveseparate fidei commissa and five separate male lines and the conditions ofthe deed will govern each separate fidei commissum. If the deed of giftis construed in this manner the plaintiffs get only a one-fourth share.Even if there is only one fidei commissum the fideicommissaries do notget an interest till after the death of all the fiduciary donees. Theplaintiffs cannot maintain this action as long as Marthinus is alive.
“ After their death ” means after the death of all of them.
N. Nadarajah (with him H. E. Amarasinghe), for second defendant,respondent, and
Mackenzie Pereira, for fifth defendant, respondent, adopted the argu-ments of counsel for first,'third, and fourth respondents.
H. V. Perera, in reply.—The failure to institute the survivor as heiris not fatal to a fidei commissum residui. The will is in Sinhalese and thetestators and notary are Sinhalese. Therefore the absence of the wordheir is not so significant as it would have been in the case of an Englishwill. The case of Botha v. Vander Vyver is in favour of the contentionthat a fidei commissum residui may be created without appointing thesurvivor heir. Laurence J. said that he did not wish to be understoodas laying down the proposition “ that in no case the survivor as usu-fructuary, if not instituted direct heir, would possess the power ofunrestricted alienation …. See further Voet, bk. VII., art. 9,tit. 1 referred to (supra) as to the construction given to the words “ what-ever property remains ” in Botha v. Vander Vyver and Cowen v. EstateCowen (supra). Sufficient effect could be given to the words otherwise thansuggested l®' the plaintiffs in those cases because the subject-matter ofthe usufruct'was movable property. The words “that may be left” and“ the balance that may then be left ” were construed to mean what wasleft after the ordinary wear and tear resulting from use and after thelosses from unprofitable investments. If the last will P 1 created afidei commissum residui then A. 'S. had full power to alienate the pro-perty by way of sale and also by way of donation inter vivos, providedthat the donation was not made fraudulently for the sake of curtailingthe fidei commissum and defrauding the fideicommissary. (Voet,bk. XXXVI., tit. 1, s. 54.) What Voet means by this passage is thatthe donation is not ipso facto void but only voidable at the instance ofthe fideicommissary who must prove that it was made fraudulently and witha view to prejudicing his interests. The respondents in this case havefailed to prove that deed No. 232 was executed fraudulently and with aview to prejudicing their interests. On the contrary the deed of gift gave
MACDONELL CJ.—Fernando v. Alwis.
207
them a present interest whereas under the joint last will they would havegot an interest only after the death of A. S. The fact that the interestthey got under the deed of gift was burdened with a fidei commissumis not by itself sufficient to prove prejudice. A fiduciary under a fideicommissum residui is not entitled to dispose of the property by will.It was on this principle that Koedyk’s case was decided. Although thegift in that case was one inter vivos it was to take effect after the deathof the donor and therefore it was in effect a testamentary disposition.With regard to the argument that P 1 created a continuation of thecommunity of property between the survivor and the children it washeld as long ago as 1892 that the Roman-Dutch law of continuingcommunity formed no part of our law (Wijeyekoon v. GunewardeneCarolis Appu v. Jayawickrama {1858) D. C. Colombo, No. 21,043 reportedin the appendix to Vanderstraaten’s Reports, page 46).
The reason for executing the deed of revocation (P 4) was that doubtshad arisen as to the right of A. S. to make a gift and not that the accept-ance by Haramanis was imperfect. P 4 was not merely a revocation ofthe gift but a disclaimer and a renunciation of the rights that the doneesacquired under the deed of gift No. 232 and a retransfer and reassignmentof those rights to A. S. (See the recitals and operative part of P 4.)
A fiduciary cannot compromise to the prejudice of a fideicommissary.It is possible for a fiduciary under a fidei commissum created by will tocompromise in certain circumstances and such a compromise will bebinding on the fideicommissary. But a fiduciary under a fidei commissumcreated by deed inter vivos can never compromise because a fideicom-missary donee who dies before the fiduciary transmits the expectation ofthe fidei commissum to his heirs. (Mohamed Bhai v. Silva’.)
Where the gift is to a family, acceptance by the first donee or doneesis sufficient to vest the property in the subsequent donees and their-acceptance is not necessary. The gift under deed No. 232 was in favourof a family and if it was validly accepted by the first donees the donorhad not the power to revoke it even with the consent of the first donees.
(Perezius 8 55, 12; John Perera v. Avoo Lebbe Marikar ' Soysa v. MahideenEx parte Orlandini and two others".) Case reported in 7 N. L. R. 123was wrongly decided. One of the Judges, Wendt J. who decided thatcase, said in a later case, Asiathumma v. Alimanachy', that he was ofopinion on reconsideration that the 7 N. L. R. 123 case had not beencorrectly decided.
Cur., adv. vult.
&
June 24, 1935. Macdonell C.J.—
I have read and concur in the judgment of my brother Maartensz,and wish only to add a few observations on the question whether or notit is possible to hold that those of the' donees under deed No. 232 (P 3).who were minors at the time of its execution, namely Theodoris, JohnHenry, Marthinus, and James, accepted that deed of gift.
(1392) 1 S. C. R. 147.4 3 S. C. C. 133.
(1903) 1 Matara Cafes103.3 (1914) 17 N. R. 279.
(1911) 14 N. f„ It. 193(FullF.etirh).‘ (1931) S. .4. L. R. O. F.S. Pror. Die. 141.
■> ii9a-,, i 4. r. /:. 53.
208
MACDONELL C.J.—Fernando v. Alwis.
Firstly, the argument from the recitals in the deed of revocationNo. 619 (P 4). In these Adriana Suwaris, donor on deed No. 232, recicesher doubts as to her right under the joint will No. 2,064 (P 1) to makethe gift purported to be made by deed No. 232, and the surviving donees(Theodoris was dead), being then of full age, recite their desire to disclaimall title under that deed and their desire to reconvey the property to thedonor Adriana “ to have and to hold as in her former estate under the saidjoint will ”. It was argued that we should infer from these recitalseither that there had been an acceptance or that these recitals werethemselves an acceptance, an act that needed no formalities, one thatcould be done at any time before the donor’s death.
To take the latter contention first, that these recitals were themselvesan acceptance. But the recitals contain a disclaimer of title and areconveyance of the property by the donees who in effect adopt thedoubts of the donor whether she had power at all to make deed No. 232;how then can they amount, implicitly or explicitly, to an acceptance?
The other contention as to these recitals was that they implied aprevious acceptance and in argument it was put to us thus, ‘ they pre-suppose a previous acceptance ; the facts are recited in extenso, and noquestion is raised in the recitals with regard to the completeness of thedonation ’. But the recitals are almost or wholly negative ; ‘ probablyAdriana had no right to make the gift and therefore we the nameddonees desire to renounce any title we may have ’, but they do not assertthat they have any title, and even if the words expressing a desire to‘ reconvey ’ imply something affirmative, still they must be interpretedin the light of the surrounding words and, so interpreted, they seemto mean no more than this : ‘ we desire to reconvey whatever we may havebut we doubt we have anything at all ’. Interpreting these recitalsas best I can, they seem- when analysed to convey a series of negativepropositions, yet we are invited to draw from them the inference that therehad been a previous acceptance, an affirmative proposition. But thiswould be contrary to ordinary principles of reasoning.
Next, the argument that the acceptance in the deed No. 232 (P 3)by Johannes Fernando, the only one of the five donees who was majorat the date of its execution, was an acceptance for and on behalf of theremaining four donees, minors at that date, but I see grave difficultieson the words of the acceptance in accepting this argument. They arethese—“ We, the undersigned Wattemullegey Johannes Fernandoand Beruwallegey Haramanis Suwaris, for and on behalf of WattemullegeyTheodoris Fernando, Wattemullegey John Henry Fernando, Watte-mullegey Marthinus Fernando, and Wattemullegey James Fernando, dothankfully accept the above, gift ”. The plaintiffs ask us to interpretthese words to mean that Johannes and Haramanis, one or both, acceptedthe gift for and on behalf of the four minor donees. Now, these wordscontain an acceptance by Johannes. For and on behalf of whom?Primarily, you would presume, for and on behalf of himself. He was anamed donee, and was major and sui juris at the time of the gift, sopresumably he accepted on behalf of himself at any rate, and indeed itis part of the plaintiffs’ case that he did. If, however, the words of
MAARTENSZ J.—Fernando v. Alwis.
209
acceptance are to be interpreted to mean that Johannes, jointly withHaramanis, accepted for and on behalf of the four minor donees but notfor and on behalf of himself also, then this would be an interpretationcontrary to the natural interpretation of the words of acceptance follow-ing as they do on earlier words in the deed making Johannes a donee,and would also be contrary to the plaintiffs’ case. Then we must holdon the plain meaning of the words of acceptance, that Johannes acceptedat any rate for himself. But the contention of the plaintiffs will thenhave to be that Johannes accepted not only for and on behalf of himselfbut for and on behalf of the four minor donees also. Then it will benecessary to add something to the clause and to make the words, ofacceptance say, “ I, Johannes, for myself and the four minor donees,and I, Haramanis, for the four minor donees, thankfully accept the abovegift ”, but the words of acceptance as they stand in deed No. 232 do notsay this, and I doubt we would be justified in adding the words requiredby the plaintiffs’ argument. The words as affecting Johannes meannormally that he accepts for himself and in the absence of further words‘ exhaust ’ his acceptance, if the phrase may be permitted. The normalmeaning of the words of acceptance seems to be that Johannes acceptsfor himself, since he is a donee and was of age when he accepted, andthat Haramanis accepts for the four minor donees. The absence of any-thing in the words of acceptance to show that Johannes accepted for thefour minor donees as well as for himself, seems to put the plaintiffs in adilemma. Either they must argue that Johannes accepted for the fourminor donees only whereby, apart from other difficulties, they will beputting a less normal meaning on the words in which he accepts, or theymust admit that he did accept for himself but not for the four minordonees also. They do not, and indeed cannot, it seems, urge the formerof these two possible arguments. Then they are thrown back on thelatter; the acceptance for the four minor donees was by Haramanis only,which indeed is the normal interpretation of the words of acceptancein the deed. But if they found on an acceptance by Haramanis, andthey seem to be driven to this, then they are faced with the difficultieson the point set out in the judgment of my brother Maartensz; I need notrepeat what he has said.
I agree that this appeal must be dismissed with costs.
Maabtensz J.—
The plaintiffs in this action allege that they are entitled to an undividedhalf share “ of an allotment of land with the buildings bearingNos. 1-12, Gasworks street, and 135-149, Dam street, and bounded onthe north by Dam street, east by Kachcheri grounds and propertiesbearing Nos. 130-134, south by premises belonging to the Crown andbearing No. 13, and west by Gasworks street formerly known as St.Pauls road, containing in extent two acres ”, and that the defendants whohave no manner of title are in wrongful possession of a moiety of their,share, and plaintiffs pray that they be declared entitled to that one-fourthshare and for possession and damages as claimed, in the plaint.
The land in dispute hereafter referred to as the premises admittedlybelonged to Manuel Fernando who with his wife, Beruwellege AdrianaSuwaris, executed a joint last will No. 2,064 (P 1) dated December 31, 1860,
210
MAARTENSZ J.—Fernando v. Alto is.
whereby all their movable and immovable property were, according tothe plaintiffs, devised and bequeathed to the survivor of them withpower to deal with the same as he or she pleased' during his or her lifetime.
Adriana Suwaris, who survived her husband, duly proved the will andby deed No. 232 (P 3) dated November 4, 1871, donated the premises indispute to her five sons—(a) Johannes, (b) Theodoris, (c) John Henry,(d) Marthinus, and (e) James—to the exclusion of all females whetherdaughters or granddaughters or other remoter female descendants of thesaid sons so long as there should be a male heir or heirs alive in the saidmale line.
Theodoris Fernando died in 1874, a minor, without issue. John Henryand Johannes Fernando left no male issue. James Fernando died onJuly 28, 1931, leaving two sons, the plaintiffs. Marthinus has three sonsand is still alive, but is not a party to this action.
The case for the plaintiffs is that James and Marthinus each becameentitled to a half share and that they, plaintiffs, succeeded to the share oftheir father on his death. They are admittedly in possession of a one-fourth share. No one disputes their right to this, but they word theirclaim as one to a fourth share, thus making up the half which they saywas the rightful share of their father.
It will be convenient to state here the relationship of the defendants toAdriana Suwaris and the donees under deed No. 232.
The first defendant was married to a daughter of John Henry Fernandonamed Mary Fernando who died leaving a will by which she devised aone-eighth share of the premises to the first defendant. The seconddefendant is a sister of Mary Fernando, the fifth defendant is her husbandto whom she gifted a one-sixteenth share by deed No: 94 dated May 1.1926.
The third and fourth defendants are brother and sister ; they are thechildren of Johannes Fernando’s daughter Agnes who died in November,1907.
It appears from the proceedings that Adriana Suwaris by deed No. 619(P 4) dated January 21, 1884, revoked the deed of gift No. 232 recitingthat she had executed the deed of gift in the bona fide belief that she wascreated sole heir by the joint will of herself and her husband and thatdoubts had arisen as to her right to do so.
Theodoris had died in 1874 before the deed of revocation was executed.The remaining donees were parties to the deed, which is in form anindenture, and they renounced and disclaimed all their rights to thepremises under the deed of gift “ or otherwise howsoever ” and reassignedand retransferred the premises to Adriana Suwaris.
Adriana Suwaris, however, again gifted three-fourths of the premises toJohn Henry, Marthinus, and James Fernando by deed No. 1,792 (P 5)dated October 8, 1894, subject to certain conditions, reserving to herselfthe right to take the produce and income of the premises during her life-time and the right to alter or modify the conditions of the gift and toimpose fresh and further conditions without assigning any reason therefor.
Adriana Suwaris on the same date by will No. 1,793 (P 6) bequeathed theremaining one-fourth share of the premises to Johannes Fernando subject
MAARTENSZ J.—Fernando v. Alwis.
211
to certain conditions. Adriana Suwaris died in or about the year 1896.It is in accordance with this deed of gift No. 1,792 (P 5) and this will No.1,793 (P 6) that the brothers Johannes, John Henry, Marthinus, and James,and their descendants have beep possessing and enjoying this property eversince the execution of those documents in 1894, a period of about 40 years,and it is the family settlement, as it may be called, that these two instru-ments create which the plaintiffs by the present action seek to impugn.
The defendants dispute the claim made by the plaintiffs on the followinggrounds, (a) They deny that Adriana Suwaris had a disposing power underthe joint will in pursuance of which she purported to execute the deed of giftP 3, in the alternative they contend that the power of alienation, if any,did not extend to alienation by way of donation. – (b) They challenge thevalidity of the deed of gift on the ground that it was not duly acceptedby John Henry, Theodoris, and James Fernando who were minors at thetime of its execution. In the alternative they contend (1) that the deedof gift created separate fidei commissa and that the plaintiffs onlysucceeded to a one-fourth share of the premises on the death of JamesFernando, and (2) that if it created one fidei commissum the plaintiffshave no right of action as Marthinus Fernando is still alive.
There were other subsidiary defences which are formulated in the issuesstated on page 60 of the record.
The first question for decision is stated in issue 6, “ Had Adriana Suwaristhe right to execute deed No. 232 of November 4, 1871 ”.
The answer to this question depends on the construction to be placedon the 4th clause of the joint will P 1 which is expressed as follows in thetranslation of the will filed by the plaintiffs:-—
“ Fourthly. After the death of one of us the survivor can possess allthe movable and immovable property belonging to us according tohis or her pleasure, and whatever property remains after the death ofboth of us shall be equally divided among our children ”.
There are no words in the clause expressly appointing the survivor theheir of the predeceasing spouse. Nor are there any terms such as“ devise ” and “ bequeath ” from which it could be inferred that thesurvivor was to be the heir of the joint estate. The will however isexpressed in Sinhalese and the testators and the notary were Sinhaleseand the absence of such terms is not so significant as it would have beenif the will was drawn in English by a notary familiar with the modes ofexpression used in wills by which a person is appointed heir of the testators’property and not merely a usufructuary heir. But whether the draftsmanof the will was familiar with the modes of expression or not, the clauseaccording to the translation from which I have quoted gives the survivorup to a point no more than a right to possess the movable and immovableproperty of the estate in any way he or she pleases. If it stopped there.I -would have had no difficulty in holding that the survivor had no morethan a usufruct in the property. The clause, however, in directing howthe property is to be disposed of after the death of the survivor refers to itas whatever property remains. It was pressed upon us very stronglythat the expression “ whatever remains ” impliedly gave the survivor apower of alienation and that what the testators intended was that the
212
MAARTENSZ J.—Fernando v. Alwis.
survivor should possess and do as he or she liked with the property evento alienating all or any part of it and that whatever was left, if any, at thedeath of the survivor should be equally divided among the children. Inshort that the clause created a fidei commissum residui.
The clause was construed in this sense in the case of Ferdinandus v.Fernando' when the Appeal Court considered a translation of the clausein exactly the same terms as the one before us and a literal translationmade by Mr. Felix Dias, the District Judge, a Sinhalese gentlemanfamiliar with the language, who tried the case.
The translation made by the District Judge Mr. Dias is, according tothe report of the case, as follows:—“The survivor having done as (he orshe) pleased with all our movable and immovable property, (and) havingpossessed (the same) afterwards on the death of both ofh>us it is our willthat whatever remains shall be divided equally amongst our children ”,The words within brackets are not in the clause as written in Sinhalese.
Moncreiff and Middleton JJ. who heard the appeal came to theconclusion that the clause created a fidei commissum residui. Moncreiff J.thought there was little difference in effect, if any, between the twotranslations. Middleton J. was inclined to accept the translation of theDistrict Judge but expressed the opinion that the words “ whateverproperty remains ” in the translation put forward “ contemplate a possibledispossession of part of that which was to be possessed according topleasure ”. In that case, however, the first question for decision waswhether a daughter of Manuel named Engeltina had by her acceptance ofa deed of gift executed by the donors renounced her right of inheritancein the estate of the testators. The acceptance being “ subject to thecondition and restriction that Engeltina was not to claim hereafter anyinheritance out of the estate of us Wattumullege Manuel Fernando andB. Adriana Swaris ”.
This question was answered in the affirmative and there was no necessityfor their Lordships to consider the question of the effect of the 4th clauseof the will and their opinion is not binding on us. Respondents’ Counselon the other hand referred us to an anonymous case, D. C. Colombo,56,846, reported in Vanderstraaten’s Reports 203, where it was held thatthe surviving testator of a will containing a very similar clause had noright to alienate the property. The clause in that will was split up intotwo and was as follows. “ Fourthly. The testators declare to reserveto the survivor of them the right to possess all their movable andimmovable property as he or she pleases. Fifthly. The testatorsdeclare it to be their will and desire that after the death of both of them,whatever property is left be divided equally among their four sons andtwo daughters or their heirs and be possessed by them as they please ”.The District Judge held in effect that the clause created a fidei commissumresidui giving full effect to the words “ whatever property is left ”, theSinhalese word for the expression being " ethuru ”, the same word isused in the joint will we are considering. The District Judge’s decisionwas set aside in appeal. The Supreme Court in a very brief judgmentheld as follows. “ The Supreme Court thinks that the first defendant
1 (1903) n .V. /.. R. 328.
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MAARTENSZ J.—Fernando v. Alwis.
(the survivor) under the terms of the will cited in the libel took only alife interest in the property devised; and that, in the absence of anyexpress power to alienate, there are no words used in the will sufficientlystrong to raise such power by implication. On the contrary the clausedirects that the survivor shall possess and enjoy the property, and thatafter his death the property should be divided, rather imply that it shouldbe possessed and not alienated The authority of this decision isrendered dubious by the absence of any reference to the words “ whateverproperty is left ” and an opinion as to their effect. Middleton J. in thecase of Ferdinandus v. Fernando (supra) thought D. C. Colombo, 56,846.was wrongly decided. Respondents’ Counsel also contrasted the termsof Manuel Fernando’s will with the terms of the will made by DavidEkanayake and his wife which was considered in two cases, Weeresingheet al. v. Gunatilleke ' and Wirasinghe v. Rubeyat Umma
In the former case the translation of the relevant clauses numbered(2) and (3) was as follows: —
“ (2) It is directed that all the movable and immovable propertybelonging to us, be possessed by us, the above named, during the life-time of both of us according to our wish, and in the event of one of uspredeceasing the other, the above-named property be possessedaccording to the wish, and dealt with according to the pleasure, of thesurvivor.
“ (3) It is directed that after the death of both of us all the movableand immovable property belonging to us shall devolve on the children,grandchildren, and such other heirs descending from us ”.
It was held that the surviving spouse was merely entitled to a usufruct.In the latter case which came before another Bench the translation ofthe second clause adopted for the purposes of the decision was as follows: —
“ (2) It is directed that all the movable and immovable propertybelonging to us be possessed by us, the above named, during the life-time of both of us according to our wish; if one should die and the othersurvive, the person who lives is directed as far as in us lies to possessthe property according to his or her pleasure, and to do whatever he orshe likes with it”.
The translation of the 3rd clause adopted by the Court was the same asthat adopted in the earlier case.
It was held that the will created a fidei commissum residui and that thesurvivor was a fiduciary with a free power of alienation.
Pereira J. who delivered the judgment of the Court based his decisionon the evidence of a Sinhalese scholar that the words in clause (2)constituted a regular Sinhalese phrase or sentence used to convey thefullest and most absolute rights over property. He added that the word“ saha ” which was translated as “ and ” should be properly translatedas “ and also ”. In the course of his judgment he observed that “ the factthat not only immovable property but movable property is dealt with bythe provision in question of the will renders it highly improbable that theintention was that the survivor should have nq more than a mere usufruct
in the property devised ”.
> (19101 14 N. L. H. Sft.
– ivjvii lo V.mu.
214
MAARTENSZ J.—Fernando v. Alwis.
I do not think either of these decisions affords any guide to whatconstruction should be placed on the clause which we have to interpret.There is no extrinsic evidence of any sort from which the intention ofthe testators can be inferred and the intention must be determined asbest we can by the words alone in which they purported to express thatintention.
It is to my mind very unlikely that both the testators would by a jointwill divest themselves entirely of the ownership of property to which theywere respectively entitled; they would at least preserve a fiduciary rightwhich might become absolute in case the beneficiary heirs failed.Approaching the problem from this point of view it is improbable that thetestators would have reserved to the survivor only a usufruct in the jointestate. Have they so expressed themselves as to reserve to the survivordominium in the estate and not a usufruct merely? In the translationsubmitted by the plaintiffs the only words which suggest that they havereserved a dominium to the survivor are the phrase “ whatever propertyis left ”. The translation made by the District Judge in Ferdinandus v.Fernando (supra) has the words “ the survivor having done as (he or she)pleased with all our movable and immovable property ” which morestrongly suggest that dominium was reserved to the survivor.
The District Judge Mr. Fernando, also a Sinhalese gentleman,co&menting in the present case on the translation made by the DistrictJudge in the case of Ferdinandus v. Fernando (supra) says, “I wouldventure to think that the meaning of the Sinhalese words will perhaps bemore clear if it is noted that the phrase ‘ having done as he or she pleased,&c. ’ qualified the word ‘ possessed ’. In other words the dealingcontemplated is one of the methods of possession ”.
This explanation of the phrase as appears from his judgment which Ihave consulted was suggested to and rejected by the District Judge whomade the translation in Ferdinandus v. Fernando (supra).
I am not prepared to accept it myself as it must necessarily exclude anyeffect being given to the word ‘ ethuru At our request Mr. Guneratne,Sinhalese Interpreter Mudaliyar of this Court, furnished us with atranslation of the 4th clause which is as follows: —
Fourthly. All our movable and immovable property held by usboth after the death of one of us the surviving other shall possess doingwhatever (he or she) pleases and thereafter anything that is left afterthe death of both of us shall be divided by the children of us bothequally.
The word ‘ ethuru ’ he translates as “ anything that is left ”.
The appellants contended that the phrases in this clause for possessingand doing as he or she pleased have the force of two past participles, eachindependent of the other, so that due weight must be given to eqch. Theyfurther contended that the phrase for the survivor doing as he or shepleased constituted a Sinhalese sentence used to convey a right of owner-ship as well as of possession.
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MAARTENSZ J.—Fernando v. Alwis.
w
The respondents cited the case of Botha v. Vander Vyv/f and others'(Decisions of the Supreme Court of the Cape of Good Hope during the year1908) in support of their contention that the provision in the will that“ anything that is left shall be divided by the children of us both equally ”did not give Adriana Suwaris a power to alienate. In the case citedhusband and wife married in community of property directed by theirjoint will that the survivor should remain in possession of the joint estateand enjoy the usufruct thereof without being required to give any securityfor the same and bequeathed to the defendants the movable property asfollows: “ And we give and bequeath to our said adopted child FrancinaIsabella Milford (meaning the first defendant) the whole of the householdfurniture and effects that may be left, at the death of both of us, in thehomestead at ‘ Blue Rock ’ and we give and bequeath to our said adoptedchildren (meaning the first defendant and the said John Milford, minor)the remainder of our movable property, belonging to our said joint estate,which shall be left at the death of the survivor of us, such movableproperty to be divided between them equally, share and share alike ",The plaintiff, the husband, contended that during his lifetime he wasentitled to alienate and dispose of freely the movable property and thatthe defendants could only claim a residuum at his death.
Laurence J. said with regard to his contention that he did not wish tobe understood as laying down the proposition “ that in no case the survivoras usufructuary, if not instituted direct heir, would possess the power ofunrestricted alienation at all events, to the extent of three-fourthsAnd added “ If such is the only reasonable inference from the terms ofthe will, not ignoring any part of it, then in accordance with the rules ofconstruction referred to by Beal (‘ Cardinal Rules ’ pp. 234-5, and casesthere cited), the Court must give effect to the clearly expressed intentionof the parties, and hold the position of the life owner to be equivalent tothat of an heir ”,
The conclusion he came to in the case however was that “ where thesurvivor is not expressly instituted heir and the power of alienation is notexpressly conferred the mere waiver of security and inventory is notsufficient to entitle him (plaintiff) to such a declaration as is now sought ”.
He thought that sufficient effect may otherwise be given to the words‘ that may be left ’. He would not be responsible for preserving intactor replacing if worn out the household furniture .. . . ”
Pereira J. in the case of Wirasinghe v. Rubeyat Umma (supra) atpage 372 said that “ the fact that not only immovable property butmovable property is dealt with by the provision in question of the willrenders it highly improbable that the intention was that the survivorshould have no more than a mere usufruct in the property devised ”,which is not in accordance with the opinion expressed by Laurence J.
The decision of Laurence J. was followed in the. case of Cowen v. EstateCowen
The clauses of the will relevant to this appeal are as follows: — (1) Ihereby appoint my son-in-law Julius Jeppemy sole heir
(in trust) and executor of my estate …. (2) To my dear wife
1 2^ S. C. ft. (South Africa) 760.- S. J. l.mr Ttfp. Cttfu- P. Diri.<i*m ]0:$2. /». SO.
216
MAARTENSZ J.—Fernando v. Alwis.
. . . . : I leave for her life, so long as she shall remain unmarried, theusufruct of my estate ….(3) At her death, or retiring to
conventual life, or marrying again, I would prefer that the balance thatthere may then be of my estate, should be invested . . . . ”
It was held (1) that the son-in-law had acquired no right of ownershipbut merely the right to administer the estate for the benefit of others,(2) that the terms of paragraph (3) were too vague to create a fideicommissum, (3) that as the will merely showed a bequest of a usufruct tothe testator’s second wife “ for her life ” she was not entitled to thedominium of the property, and (4) that the words “ the balance that maythen be left ” did not render the bequest to the second wife merely subjectto a fidei commissum residui. Jones J. observed that “ investments mayhave proved unprofitable and have been lost, and movables such ashousehold furniture consumed by use
The meaning given by the learned Judges to the corresponding wordsin these wills is certainly inconsistent with the construction plaintiffs seekto place on the words in Manuel Fernando’s will. But I agree with theirCounsel that the cases are distinguishable.
In both cases the wills distinctly provided that the persons who claimedthe right of alienation should have no more than a usufruct and a right topossess the estate.
In the earlier case of Botha v. Vander Vyver (supra) there was a presentbequest of the movable property to the legatee subject to the usufruct.In the latter case the dominium of the property though not the enjoymentwas bequeathed to the testator’s son and the second wife had necessarilyonly the enjoyment of the property but not the dominium without whichshe-could not possibly be said to have a right of alienation.
•In my judgment the meaning of a phrase in one will cannot bedetermined by the meaning given to the same or a similar phrase inanother will irrespective of the context in which the phrase is used withoutdoing violence to the context and the intention of the testator who usedthe phrase. Moreover, no inference can be drawn from the absence ofany provision in Manuel Fernando’s will dispensing with an inventoryor security from the survivor as it is not the law in Ceylon to requirean inventory and security from a fiduciary heir; unless of course heis appointed executor or administrator of the estate when security isrequired by the Civil Procedure Code.
The clause in question does not expressly appoint the survivor an heirof the estate. On the other hand there are no words which indicate thatthe survivor is to have no more than a usufruct; nor are the childrenappointed heirs of the estatq; the clause merely provides that anythingthat is left shall be divided by the children of the testators after the deathof both of them. In the meantime the survivor of the testators could doas he or she pleases and possess the property.
The plaintiffs contended that no interest vested in the children as longas the survivor was alive. The case of Joachinoe v. Robertu1 was cited insupport of the contention. There, the head note reads, “ The joint willof a husband and wife married in the community of property, after
' HS901 U S. C. C. 101.
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MAARTENSZ J.—Fernando v. Alwis.
appointing the survivor sole heir to all the common property* with theright of possession for life, and providing that after the death of bothtestators such property should be disposed of as thereinafter directed,proceeded as follows:—‘It is our will and desire that after the death ofboth of us to give and bequeath to our beloved son M certain landThe testator died in 1857, and the testatrix in 1876. M was married inthe community of property to B, who died in 1867, leaving plaintiff asher sole issue
Clarence A.C.J. said, “ In my opinion the effect of the joint will is toreserve a life interest for the surviving spouse, with a gift to Don Mathesto take effect on the death of the survivor, and if Don Mathes hadpredeceased his parents or either of them, my opinion is that the gift inhis favour would have fallen through. I read the will as making a gift toDon Mathes contingently on his surviving both his parents. The EnglishWills Act of 1837, with its 33rd section, is not in force in Ceylon, and evenif it were, I doubt whether the words ‘ after the death of both of us ’would not prevent anything from vesting in Don Mathes so long as eitherparent lived ”. Dias J. said with regard to the devise to M, “ No wordscan be plainer. The testators gave nothing to Don Mathes during theirlifetime, and Don Mathes took nothing during the lifetime of both hisparents, and it follows that, as at the date of his marriage one of hisparents was alive, he took no vested interest in the garden in question,and it formed no part of the common estate of himself and his wife. Theresult is that the plaintiff’s action fails, and the defendants are entitledto judgment
We were also referred to the case of Omer Lebbe Marcar v. Ebertwherethe joint will instituted the children of the testator heirs of the joint estateand added that “ after the death of the survivor the joint estate andproperty shall be inherited by their children in equal shares, the shares ofany of the children who predeceased the testators to be inherited bytheir issue by representation ” and the Court held “ that the devise infavour of the children took effect only on the death of the survivor of thetestators, and the property devised vested in only such of the children ortheir issue as were alive at that date ”.
In both cases the survivor was said to have only a life interest; but inneither case did the Court decide in whom the dominium vested duringthe lifetime of the survivor. Mr. Perera argued that it must be deemedto have been in the survivor, as the dominium cannot be in abeyance. Insupport of this argument he relied on Voet, art. 9, bk. VII., tit. 1,(Searle & Jouberfs Trans, p. 11), where it is stated that “if we finda usufruct either of a single thing or a whole inheritance bequeathed withthe burden of restoring the thing or estate to a third person after thedeath of the legatee, in this case when there is a doubt the ownership withthe burden of fidei commissum must be considered bequeathed rather thanthe usufruct ; for reason does not admit of the burden of restoring only ausufruct being imposed on the legatee ; since, by his death, he loses thewhole right of usufruct ipso jure, to such an extent that nothing remainsto be restored. And this opinion is strengthened- by the terms of the law,
' (1893) 3 Cey. Law Rep. 5.
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MAARTENSZ J.—Fernando v. Alwis.
which are sufficiently clear on the subject, for if a husband is considerednot to have intended a fidei commissum when he has left the usufruct of anestate to his wife, and through ignorance, not knowing that after herdeath the right of usufruct determined, has added that after her death“ the estate with the rents should revert to his heirs ” then on the otherhand, if the testator has added such proviso wittingly we must answerthat a legacy of the ownership with the burden of fidei commissum arisesfrom such disposition
I must confess I cannot understand the decisions in the two casesreferred to above. I prefer to follow the reasoning of Lascelles C.J. inthe case of Mendis v. Fernando’, who adopted the statement of the law asgiven in 1 Maasdorp’s Institutes of Cape Law, 176, that “If the bequestcontains words of futurity, the question will be whether they were insertedfor the purpose of postponing the vesting, or of merely deferring thefulfilment of the legacy, as where a bequest to one person is made subjectto a life interest in favour of another. In such a case the further questionarises whether the person (i.e., with the life interest) is a usufructuary or afiduciary legatee. In the former case the legacy, as a general rule, vestsin the remainderman immediately upon the death of the testator, and inthe latter the vesting is postponed till the death of the fiduciary legatee
In Mendis v. Fernando (supra) Lascelles C.J. does not appear to havebeen impressed by the decision in the case of Joachinoe v. Robertu (supra)but said it was not necessary to consider the correctness of the decision.
I think that the survivor by the 4th clause of the will we are consideringhad more than a life interest as he or she was empowered to do as he orshe liked with it and the children were only entitled to what remained.
I accordingly hold that the clause created a fidei commissum residui andthat Adriana Suwaris had a right to alienate the property of the estatesubject to the rights of the fideicommissary heirs in the residue.
But this finding does not conclude the matter, for it was contended bythe respondents that the rights of alienation of a fiduciary heir under afidei commissum residui did not extend to donations. In support of thiscontention we were referred to 1 Kotze’s Van Leeuwen (1st ed.) pp. 380, 381and particularly p. 382. Section 9 on page 380 deals with the case of afidei commissum in which “ power is given to the first heir to spend andalienate the property, and deal with it as with his own, subject to thisburden alone, viz., of letting whatever is left of it at his death descend (tothe next heir) ” which the section says “ often takes place betweenhusband and wife among us ”. Section 10 on 'page 382 lays down that“ the free power of -alienating and dealing with property as one’s ownin fideicommissary inheritance may not be extended further than toalienation inter vivos, without thereby any disposal or direction beingallowed to be made by last will ”. In support of this proposition Koedyk’scase is cited. “ Mr. Koedyk (who had been instituted heir by hisdeceased wife to all her property in order to do therewith as he pleased,just as a person may deal with his own property, provided that on hisdeath her relations should enjoy the half of all the property which shouldbe left remaining by him, her husband, at his death) had declared by a
■ il'lim s .V. /.. /,. 77.
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MAARTENSZ J.—Fernando v. Alu>is.
certain deed in favour of his maid servant that for her faithful serviceshe made over to her in full property the right in a certain obligation offour thousand guilders, reserving the fruits and yearly income thereof forhimself for life. The Court, notwithstanding the fact that the saidKoedyk had by inheritance from his sister considerably enriched theestate after the death of his wife, held that the said deed of gift could notexist to the prejudice of the relatives and instituted heirs of his wife, andthe defendants ” (the executors of Koedyk’s last will) “ were ordered toincrease the value of the estate by this amount There is no indicationexcept the context whether or not anything turned on the fact that thedonor had reserved a life interest. In Lorensz’s translation of Van DerKeessel’s Commentary on Grotius’ Introduction to Dutch Jurisprudence atp. 115, section CCCXX., it is laid down that “The community ofproperty, which is continued by desire of a deceased testator differs from
a fidei commissum of the residuebut it resembles the latter
in this respect, that the portion which the heirs of the deceased are entitledto cannot be diminished by donation or last will ”. In a note to thesection, Van Leeuwen’s Commentary, bk. III., ch. 8, s. 10, i.e., thepassage cited above, is referred to. The writer draws no distinctionbetween simple donations and donations in which a life interest is reservednor does Voet who, commenting on the Roman law which permitteddonations to be made to the extent of three-fourths of the inheritance,says, “ But according to our present (practice) the better view is thatdonations should be disallowed which are fraudulently made by the fiduciaryfor the sake of curtailing the fidei commissum and defrauding the fidei-commissary ” (Voet, bk. XXXVI., tit. I., s. 54—Macgregor’s Trans, p. 118.)
I presume what Voet means by the passage underlined is that thedonation must in fact curtail the estate to which the fideicommissarywould otherwise succeed. A donation is then not ipso facto void but isdisallowed if it curtails the fideicommissary’s estate.
According to the rule in Voet the respondents must establish that theirshare of the fidei commissum property has been curtailed by the deed ofgift No. 232.
There is no definite evidence in this case as to the number of childrenwho survived the testators but it was agreed at the argument in appealthat there were five sons and seven daughters and that the daughtersduring the lifetime of the testators renounced their rights of inheritance.John Henry and Johannes through whom the defendants claim wouldaccordingly be entitled to succeed to a one-fifth share each under the jointwill of Adriana Suwaris and her husband. Under the deed of gift theyreceived the shares they would have succeeded to, but burdended with afidei commissum, whereas under the will they would have succeeded tothose shares absolutely.
It was urged on behalf of the respondents that that fact was sufficientto establish that John Henry and Johannes were prejudiced by the deedof gift. I cannot assent to that contention.
The two cases must be considered separately. Johannes had attainedmajority and accepted the gift himself and I do not think he could claim a
220
MAARTENSZ J.—Fernando v. Ahvis.
declaration that the deed of gift was invalid even if it did prejudice him.John Henry’s case is somewhat different as he was a minor when deedNo. 232 was executed. He might possibly have pleaded that he was notbound by the acceptance of a gift, if it was accepted, made on his behalfto his prejudice. But I think it would have been incumbent upon him toprove that he was prejudiced. He could not have merely pointed to the factthat he was given a share burdened with a fidei commissum when hewas entitled to a free inheritance under the will ; for by the deed of gift hereceived immediately the share that he would have inherited under thewill after the donor’s death. In these circumstances there must be inmy opinion proof of prejudice. There is no such evidence. In thisconnection it must be noted that John Henry accepted a gift of a one-fourth share from Adriana Suwaris on October 8, 1894 (No. 1,792, P 5)also burdened with a fidei commissum, though of a somewhat differentcharacter.
I am accordingly of opinion that the deed of gift cannot be held to beinvalid on the ground that it prejudiced the respondents.
It was contended however that the gift would be invalid if it prejudicedthe other heirs. But none of the other children have asserted any claimin this case and any pleas of prejudice they may have set up are notrelevant 4o the issue whether John Henry and Johannes have beenprejudiced.
The next question for decision is “ Was deed No. 232 dated Novem-ber 4, 1871, accepted by Johannes and Haramanis or either of them onbehalf of the four minors is so is such acceptance valid ? ” {Issue 1.)
The donees with the exception of Johannes were admittedly minors,and both by the Roman-Dutch law and the law as laid down in localdecisions acceptance by the minors or by someone on their behalf isnecessary for the validity of the gift.
There is in the deed of gift an acceptance of it in the following terms:
“ We, the undersigned Wattemullegey Johannes Fernando and Beruwel-legey Haramanis Suwaris, for and on behalf of Wattemullegey TheodorisFernando, Wattemullegey John Henry Fernando, WattemullegeyMarthenus Fernando, and Wattemullegey James Fernando do thankfullyaccept the above gift ”.
Now it has been held that a brother who is a major may accept a deedof gift on behalf of himself and his minor brothers or sisters. In the caseof Lewishamy v. Cornells de Silva ' Middleton J. said “ There is the furtherquestion whether the acceptance of the donation on behalf of the minordonees by his elder brother was a good acceptance. In Francisco v.Costa’ an acceptance by the grandmother of the donee was deemedsufficient in law, and for the same reason given by Clarence J. at page 192I would hold that as the father, the donor, permitted the elder brothersto accept for their minor brothers I can see nothing wanting in theimplementing of this donation ”.
The facts are very briefly stated and it does not appear whether thedonees were given possession of the property donated or not. Thisdecision was followed in the case of Bindua v. Untty but in this case it* (1906) 3 Bat. Rep. 43.- 8 S. C. C. 190.
{1910) 13 -V. H. 2.59.
221
MAARTENSZ J.—Fernando v. Alwis.
was proved that the donor surrendered the property to the donees afterthe execution of the deed of gift and that the major brother possessed theland thenceforward and his minor brother and sisters took the producethemselves as they attained majority and also dealt with the land asowners while the donor was still alive. In Babaihamy v. Marcinahamythe donor gifted the property to his adopted daughter and her brothers,one of the donees accepted the donation on behalf of himself and someminor donees and entered into possession and it was held that there wasa valid acceptance of the gift.
The plaintiffs’ first contention was in view of these decisions that theterms of the acceptance endorsed on the deed of gift No. 232 amountedto an acceptance by Johannes on behalf of himself and his brothers, theother donees.
I am unable to read into the endorsement an acceptance by Johanneson behalf of his minor brothers as well as for himself. If that wasintended there was no necessity for the introduction of the name ofBeruwellegey Haramanis Suwaris. In my opinion the gift was acceptedby Haramanis Suwaris on behalf of the minor donees.
The evidence as to the position of Haramanis Suwaris in the family isvery indefinite. Ursula Fernando, the mother of the plaintiffs, said hewas a cousin of Adriana Suwaris ; but she was unable to say who hismother was or who his brothers and sisters were. Another witnessPaulis Tillekeratne said, “ the street talk was that he was a son of apaternal uncle of Adriana ”. For the defence it was suggested that hewas an illegitimate son of Adriana’s father. The plaintiffs have clearlyfailed to prove that Haramanis Suwaris stood in such relationship to theminors as to constitute him their natural guardian. Nor is there evidence,as in the case of Tissera v. Tissera ’, that Haramanis Suwaris accepted thegift at the request of the donor.
Plaintiffs’ counsel next argued that we must presume that the minors,who were living with their mother, either accepted the gift themselvesor that they appointed Haramanis Suwaris to accept on their behalf. Inshort, he asked us to presume what was in fact proved in the case ofBabaihamy v. Marcinahamy (supra).
The deed of donation considered in that case recited a gift to thedonees and after the signature of the donor there was a paragraph asfollows: “ We the said four persons (named) do hereby declare to haveaccepted the above donation granted by Tombuage Jando with thehighest regards, to have entered into possession of the said land from thisday, and to have bound ourselves to observe the above directions withoutviolation or contradiction of even one syllable, and we who are of properage to sign have also signed hereto ”
This declaration was signed by Salmon, one of the donees, and anotherdonee who could not be identified as he signed with a cross.
The notary’s attestation clause was to the effect that after he hadread and explained the deed to the donor and the donees (who werenamed) in the presence of the witnesses the same was signed by all the
proper parties in the presence of each other.
■ (JS08) 11 N. L. It 2.32.
37/18
2 (1908) 2 1Veer. Rev. 30'.
222
MAARTENSZ J.—Fernando v. Alwis.
It was accordingly held (1) “ that it was clear that all four donees werepresent at the execution of the deed, and assented to its terms, settingforth that they accepted the donation, and that Salmon being of properage …. actually signed it; (2) that it was competent to aminor to accept a donation in his favour; and (3) that Salmon’s brothersand sisters had signified their acceptance of the donation
There is with regard to deed No. 232 no evidence that the minors werepresent when the deed was executed or that they signified their accept-ance of the gift or that they appointed Haramanis Suwaris their agent.On the contrary the attestation clause only mentions JohannesFernando and Haramanis Suwaris as being present when the deed wasexecuted by Adriana Suwaris. In my judgment it is impossible to applyto this deed the ratio decidendi in the case of Babaihamy v. Marcinahamy(supra) nor can I in this case presume acceptance. No doubt Bonser C.J.in the case of the Government Agent, Southern Province v. Karolis',approved of the dictum of Dias J. in the case of Francisco v. Costa (supra)that “ the law favours the acceptance of a gift in the case of minors ”and cited with approval the case of Lokuhamy v. Juan”, where it waslaid down that acceptance will be presumed when there are circum-stances to justify such a presumption. But the presumption cannot bedrawn when there are no circumstances—such as delivery of the deedor delivery of possession—to justify it. As Layard C.J. said in the caseof Wellappu v. Mudalihami*, there must be some affirmative evidence ofacceptance on the minors’ part.
We were not referred to any' affirmative evidence in this case fromwhich acceptance of the gift could be presumed. No doubt it is difficultif not impossible to procure evidence of circumstances from whichacceptance could be inferred after the lapse of sixty odd years. Butthe fact that evidence is not procurable cannot justify a presumption ofacceptance being drawn because evidence might have been available ifthe question of acceptance had arisen earlier. The defendants have onthe other hand produced an indenture of lease No. 1,261, 1 D 12, datedDecember 30, 1876, which if it deals with the premises the subject of thedeed of gift No. 232 indicates that Adriana Suwaris dealt with the premisesas her own after the execution of the deed of gift No. 232. The propertyleased is described thus : “ The rooms, well, 8 tubs, trees, and plantationsand the gate made towards Dam street on the land adjoining Dam streetin Kaymans Gate and Gasworks street, Colombo, and belonging to theestate of the said Watumullage Manual Fernando, renter, exclusive ofthe shops, or the house adjacent to the road, the room built for storingbones, the gate or door towards Gasworks street and the bungalow putup for the sale of vegetables therein ”. Plaintiffs’ Counsel contendedthat this property could not be identified with the premises gifted. Thedefendants contended that the identity of the property was not ques-tioned in the Court below and submitted that the description of thesituation of the property in the indenture of lease make it clearlyidentifiable with the premises gifted. I am inclined to think so. Theproperty in the lease is described as belonging to Manuel Fernando’s
1 ficsfyn 2 .V. T.. fi. 72.- Ram Hep. (1872. 1870. and 1876). p. 218.
" (1908, 6 K. L. R. 233.
MAARTENSZ J.—Fernando v. Alwis
223
estate situated in Kaymans Gate and Gasworks street. In the deed ofgift P 3 the premises are said to be bounded on one side by St. Paul’sroad. In P 5, No. 1,792, executed on October 8, 1894, the same premisesare described as situate and lying along Dam street and Gasworks streetat Kaymans Gate. St. Paul’s road, the deed No. 1,792 states, is nowcalled Gasworks street. When it was put to James Fernando’s wifeUrsula that a portion of the premises gifted was leased by this deed, shemerely said, “ I cannot remember There was no suggestion thenthat they were not part of the premises gifted. The District Judge indealing with lease D 12 clearly dealt with it as if there had been no questionas to its being a lease of part of the premises referred to in deed No. 232.
A further argument in support of the acceptance of the gift was basedon the deed P 4, No. 619 of January 21, 1884, by which Adriana revokedthe deed of gift No. 232 and the donees disclaimed and renounced alltheir right, title, and interest “ in, out of, or upon the said property andevery part thereof under and by virtue or in respect of the said deed ofNovember 4, 1871, or otherwise howsoever, and granted, reassigned, andretransferred to Adriana Suwaris the said property, to wit, (here follows adescription of the premises) with all and singular the appurtenancesthereto …. and all the right, title, interest, claim, and demandwhatsoever of them and each of them …. to, in, out of, or uponthe said premises ”.
Adriana Suwaris recited in this deed No. 619 that she had made a jointwill with Manuel Fernando, which she proved after Manuel Fernando’sdeath, and that she executed deed No. 232 acting under the bona fidebelief that as such survivor as aforesaid she was by the said will createdsole heir of her husband and as such had absolute power to deal with theentirety of the common estate, and continued as follows : “ And whereasdoubts having arisen as to the right of the said Beruwellegey Adriana 'Suwaris under the said joint will to make the gift and disposition aforesaid,and the validity thereof being in question, she is desirous of revokingthe same, and that the said Johannes Fernando, John Henry Fernando,Marthinus Fernando, and James Fernando are likewise desirous ofdisclaiming all title to the said property under the said deed of gift andof reconveying the same to the said Adriana Suwaris to have and to holdas in her former estate under the said joint will ”.
It was contended that as the reason for the deed of revocation No. 619was that Adriana Suwaris doubted her power under the will to execute thedeed of gift No. 232, the recitals in this deed of revocation amounted too statement that the gift under No. 232 had been sufficiently accepted atthe time No. 232 was executed and the disclaimer and renunciation by thedonees of their rights under that deed of gift, and their reconveyance ofall their interests in it to the donor, manifested an acceptance of the deedof gift or was in itself’a subsequent acceptance.
These are certainly startling propositions, and plaintiffs’ counsel wasunable to support his argument with authority. Nor have I been ableto find any.
There are two cases in which instruments executed by the donee ata later date than the instrument of gift were held to amount to an
224
MAARTENSZ J.—Fernando v. Alto is.
acceptance. But the first point to be decided is whether a minor can manifesthis acceptance of the deed of gift at some time after the deed of gift wasexecuted
In the case of Silva v. Silva ' Grenier J., with whom Hutchinson C.J.agreed, held that “ in the case of a donation to a minor the law requires apresent acceptance by the natural or legal guardian of the minor and notan acceptance at some further indefinite time by the minor himself, afterhe has attained majority This decision is against the proposition.But it was not followed in the case of Wickremesinghe v. Wijetunge ‘where it was, I venture to think, rightly held that “ under the Roman-Dutch law a donation may be accepted at any time during the lifetimeof the donor, and where its fulfilment is postponed till after the donor’sdeath, it may even be accepted after the donor’s death This is one ofthe two cases referred to above. It was an action by the donor againstthe donee, his daughter, and her husband for declaration of title to theland he had gifted to the donee. The plaintiff alleged that the donationwas not completed by delivery and acceptance and that the land donatedwas in his possession till the ouster complained of. Before the commence-ment of the action the donee had sold half of the three lands gifted to herto her husband. This was held to be “ clearly an act of acceptance ”,In the other case Tissera v. Tissera (supra) the deed of gift was onemade by fhe father and sister of the donees, it was accepted on behalfof the donees by a stranger. The acceptor gave evidence that he hadaccepted the gift at the request of the father. It was admitted that thematernal grandmother was alive. One of the donees had mortgagedthe share donated to him reciting title under the deed of gift andacceptance was presumed from this recital.
The donees in both cases exercised for their own benefit a right derivedby them from the deed of gift. They could only do so on the footing thatthey had accepted the deed of gift and were vested with rights under it.But a donee who renounces a right created by a deed of gift may do soeven if he was not in fact vested with the right.
In my judgment the exercise of a right derived from a deed of gift asproof of acceptance is very different to the renunciation of a rightderived from such a deed unless there was proof that the deed had beenaccepted before the deed of renunciation was executed.
In my opinion the deed of renunciation cannot by itself be held toestablish an acceptance by the donees. They might have proceeded onthe assumption that the acceptance by Haramanis Suwaris was a validacceptance. If that were so they could not rely on the deed of renun-ciation as proof of acceptance for they 'might have executed the deed forthe purpose of divesting themselves of their rights if any under the giftor they might have been joined to preclude them from thereafter raisingquestions as to the validity of Adriana Suwaris’ title.
I find it impossible to accept the proposition that a deed of gift invalidfor want of acceptance can attain validity from the deed, and nothingelse, by which the donees renounced their rights, if any,'under the deedof gift.
= (l:tm 16 _Y. R. 41:t.
■ 11908, 11 N. /.. R. 161.
MAARTENSZ J.—Fernando v. Alwis.
225
I accordingly hold that the gift of the premises to the donees otherthan Johannes was invalid for want of acceptance by them.
Plaintiffs’ counsel contended however that even if the gift to JohnHenry, Theodoris, and James was invalid for want of acceptance theplaintiffs acquired rights to the premises by virtue of the acceptance byJohannes.
The argument so far as I could understand it was this. The gift wasa gift of the entirety of the premises to teach. Therefore the rule inVoet, XXXIX. V, XIV. that “ if a donation either of a particular pieceof property or of all property be made to several persons together andone of them does not accept the gift his share by no means accrues to theothers but it rather remains outside the operation of the donation,because such a donee is neither an heir nor a legatee ”, did not apply,and Johannes became entitled to the entirety of the premises by hisacceptance of the deed of gift. Accordingly on the death of Johanneswithout male descendants the premises devolved in terms of the gifton Marthinus and the male children of James. In the alternative it wasargued that if the rule applied, the plaintiffs as the male descendants ofJames succeeded to a one-tenth share, that is, to half of Johannes’ one-fifth share.
I am unable to agree with either branch of the argument. Even ifAdriana Suwaris intended to create one fidei commissum for the benefitof the male descendants of the five donees that intention failed as a resultof the non-acceptance of the gift by the donees other than Johannesand the rule stated by Voet became applicable and Johannes and hisdescendants in the male line became entitled to only a one-fifth share.But whether the rule applied or not the descendants of the donees in themale line who had not accepted the gift did not acquire any rights underthe deed of gift. The argument would I think have had force if the giftwas a donation to Johannes and to the descendants of Johannes in themale line and failing such descendants to the descendants in the maleline of his brothers. In such a case the descendants in the male linethe brothers would succeed by virtue of the gift to Johannes as fiduciaryfor the descendants of his brothers in the male line on failure of his ownmale descendants. But -in terms of deed No. 232 the descendants in themale line of the brothers became fideicommissary heirs by virtue of thisgift to John Henry, James, Marthinus, and Theodoris Fernando asfiduciary heirs, and on their failure to accept the gift their descendants inthe male line did not become fideicommissary heirs at all and thereforecould not succeed to the share Johannes had accepted.
I have I think considered every argument that was adduced in supportof the plea that deed No. 232 was accepted by John Henry, James,Marthinus, and Theodoris Fernando. In my opinion the plea fails andI agree with the District Judge’s finding that “ there is no proof that deedof gift P 3 was. in fact accepted by any of the minor donees ”.
It appears from the District Judge’s judgment that a lease P 7 and notthe deed of revocation P 4 was relied on in the District Court as provingthat the minor donees had in fact accepted tlie gift. This lease P 7,No. 1,734, dated May 14, 1894, was not relied on by the plaintiffs in this
226
MAARTENSZ J.—Fernando v. Alwis.
Court for that purpose. I do not think any inference can be drawn fromthe parties to or the terms of the lease P 7 as it was executed after theexecution of the deed of revocation P 4.
The plaintiffs’ claim to the one-fourth share in dispute in this case basedon the deed of gift No. 232 not being sustainable since there is no proofthat James, their father, ever accepted that gift, it is not open to theplaintiffs to plead that their rights accrued to them only on the death ofJames on July 28, 1931, and that the proviso to section 3 of the Prescrip-tion Ordinance, No. 22 of 1871, saves those rights from having beenprescribed against. I may say here that the proviso to that sectionwould have saved those rights from prescription, since they only becamerights in possession on July 28, 1931, if the plaintiffs had been, as theyalleged, fideicommissaries under deed of gift No. 232 by reason of Jamesunder whom they claim having accepted.
There remains the question whether the plaintiffs can claim title toany share in addition to the one-fourth share to which their title isadmitted on the ground that Adriana Suwaris did not dispose of a one-fourth share. The will she executed' in favour of Johannes being abreach of the rule of Roman-Dutch law that a fiduciary heir under afidei commissum residui had no right to dispose of the fidei commissumproperty by a testamentary disposition.
Even if a one-fourth was left undisposed of any claim the plaintiffsmay have to a share in it has long since been prescribed against.
The plaintiffs’ claim in my opinion to any share in addition to the one-fourth share bf which they are admittedly owners, fails.
The defendants further contended that the plaintiffs’ claim must faileven if deed No. 232 had been accepted. They argued (a) that as thefideicommissary donees had not accepted the deed of gift the donor wasentitled with the consent of the donees to revoke and had revoked thedeed of gift by deed No. 619, (P 4), (b) that even if deed No. 619 wasinvalid as a deed of revocation it effected a compromise which wasbinding on the fideicommissary donees including the plaintiffs.
The first branch of this contention is against the weight of authority.
It was held in the case of John Perera v. Avoo Lehhe Marikar’, thatwhere the gift is made by the donor in favour of a family in which hewished it to remain the donor is not allowed to revoke the gift even afteracceptance by the first donee. The authority for this decision is thefollowing passage in Perezius, art. 12 (Trans. by Wickramanayake), p. 30,“ Lastly the former opinion would be the more correct if the gift madeto one person is made in favour of a family in which the donorwishes the property gifted to remain; for by no pact can it be revokedin respect of after-comers ; for it is sufficient in order that it may beconsidered a perpetual donation that the first donee has accepted it sothat there is no need of a subsequent acceptance ”. This case wastreated as a decision of the Full Bench and followed in the case of Soysav. Mohideen *. The law as stated by Perezius was adopted in the OrangeFree State in the case of Ex parte Orlandini and two others *.
I fi s. C. C. 138.1 (1914)7 N. L. R. 279.
> (1931) S. A. L. R. 0. F. S. Prov. Div. 141.
MAARTENSZ J.—Fernando v. Alujis.
227
l am unable to distinguish this case from the cases referred to aboveand I am of opinion that the deed of gift could not be revoked by AdrianaSuwaris even with the consent of the fiduciary heirs.
The only case in which it was held that acceptance by the fideicom-missary donees was necessary is the case of de Silva v. Thomis Appu *.One of the Judges, Wendt J., who took part in it, later in the case ofAsiathumma v. Alimanachy- said that he was of opinion on reconsider-ation that the case had not been correctly decided.
In support of the second branch of the argument Voet, bk. II., tit. 15,art. 8(Buchanan’s Trans.), p. 366 -was referred to. It is there
stated that “ it seems to accord with reason ” that a fiduciary heir maycompromise without the consent of the fideicommissary heir so as tobind the latter. It is not necessary for me to consider whether thepassage applies to a fiduciary and fideicommissary donee. But apartfrom the specific reference to heirs there is a passage in the article whichsuggests that the fiduciary heir has the right to compromise because thefideicommissary heir does not in the case of a fidei commissum created bywill acquire an interest until the death of the fiduciary. The passage isas follows: “ And although it is true that what is done between othersought often not to injure a third party, yet as it is uncertain, while thecondition of the fidei commissum is suspended, whether anything willever come to the fideicommissary heir from the subject-matter of thefidei commissum, since the fideicommissary may die before the fiduciaryheir, or the fidei commissum may prove wanting in any other way, it istherefore unnecessary that there be required, and made necessary, forthe compromise, the consent of him who only meanwhile cherishes afleeting and uncertain hope of acquiring the fidei commissum”. Thisargument will not apply in the case of a fideicommissary donee who ifhe dies before the fiduciary donee transmits the expectation of the fideicommissum to his heirs (Mohamed Bhai v. Silva’).. Whether the articleapplies to fidei commissum created by deed inter vivos or not does notappear to me to be material, for I cannot possibly see how the deed ofrevocation by which the donees parted with all their interests withoutany return can be regarded as a compromise.
The defendants also contended that the deed of gift created not onefidei commissum but five separate fidei commissa and that the plaintiffsdid not succeed to the share of any of the donees who died without issueor without issue in the male line. In the alternative that if the deedcreated one fidei commissum the plaintiffs had no interest in the propertydonated as long as Mar thin us was alive.
Adriana Suwaris in deed No. 232 recites her intention and desire todonate the premises to her five sons who are mentioned by name andtheir descending heirs in the male line to the exclusion of all femaleswhether daughters, granddaughters, or other remote female descendantsof her said sons so long as there should be a male heir or heirs alive in thesaid male line and that in the event of the said heirs of the male linebeing extinct or then ceasing the said property should go to the descend-ing heirs of the said five sons to the exclusion however of the daughters» (1903) 7 N. L. R. 133.2 (1905) 1 A. C. R. 53.
2 (1911) 14 N. L. R. 193 (Full Bench.)
228
MAARTENSZ J.—Fernando v. Alwis.
of the said Beruwellegey Adriana Suwaris and their heirs.
By the operative clause she gives grants and assigns unto the said(here follows the names of the donees) and their respective heirs ashereinafter more particularly described as a gift absolute and irrevocableall that (here follows a description of the premises).
The relevant portions of the habendum clause are thus expressed : “ Tohave and to hold the said premises …. subject, however, to thefollowing conditions, that is to say, that the said (names of the donees)shall possess the said property under the bond of fidei commissum andshall neither alienate nor incumber the said property nor create anycharges or lien thereon but shall possess the same during their lifetime,and after their death the same shall devolve on their lawful descendingheirs inthemale line, subject tothe same conditions to theexclusion
howeverofallfemales whetherdaughters, granddaughters,or other
remote female descendants of the said …. so long as thereshould be a male heir or heirs in the said male line alive ; and that inthe event of the said male heir or heirs in the male line being extinctthen toallthedescending heirsof the said …. subject to the
same conditions,and if such heirsshould become extinct thento all the
heirs of the said Beruwellegey Adriana Suwaris, subject to the sameconditions, and further that the said property or any interest, rent,usufruct, and revenue in and of the said property shall not be liable tobe attached, seized, or sold for the debts of any or all persons who shallhave a right, title, or claim in and to the said property by virtue of thesepresents ”.
The deed of gift clearly donates the whole property to the five sons.It does not in terms donate a one-fifth share to each of the donees. Itwas submitted however that that intention must be inferred from thewords “ their lawful descending heirs in the male line ” in the habendumand from the words “ and their respective heirs ” in the operative clause.The argument was that the deed created five male lines from each ofthe donees and that there were therefore five separate fidei commissaand not one fidei commissum. In my opinion the words “ respectiveheirs ” are controlled by the words in the habendum clause quotedabove which indicate that the premises are not to devolve on the femaleheirs of the donees respectively failing descendants in the male line norin my opinion do the words “ in the male line ” create five lines; theyare employed for the purpose of stating concisely that the donor intendedto exclude the female children of male descendants, as also the malechildren of female descendants, until all the male descendants of the maledonees had failed.
I am unable to distinguish the terms of this deed from the terms ofthe deed of gift considered in the case of Carlinahamy v. Juanis ', whichwas held to create one fidei commissum.
The contention that the plaintiffs had no interest in the premises duringthe lifetime of Marthinus was based on the words in the habendum clausethat the premises “ should devolve on the descending heirs in the maleline of the donees after their death ”. The plaintiffs would have us readthe words quoted as ‘ after their respective deaths the defendants on
■ (1924) 21i iV. /.. H. 129.
Samarasinghe v. Wickremesinghe.229
ihe other hand asked us to give the words their ordinary meaningwithout any addition, namely, that the premises were to devolve afterthe death of all the donees.
Whether the word “ respective ” should be added or not depends on'what was the intention of the donor so far as it can be gathered from theterms of the deed. For the reasons given by Bertram C.J. in the case ofAbeyaratne v. Jagaris' I would hold that the words after their deathshould be construed as “ after their death respectively I am accord-ingly of opinion that on the death of James his share would havedevolved on the plaintiffs if there had been a valid acceptance of thegift made by deed No. 232.
There is one other matter I must refer to. fn the course of the argu-ment there was a suggestion made rather vaguely that there was acontinuation of the community of property between the surviving parentand children. I need only say with regard to this suggestion that aslong ago as 1892 it was held that the Roman-Dutch law of continuingcommunity, after the death of a parent, between the surviving parent andthe children, was never adopted by us (Wijeyekoon v. Gunewardene '). Asimilar opinion was expressed by Wendt J. in the case of Carolis Appu v.Jayewickreme ". Lawson D.J. was of the same opinion in 1858, D. C.Colombo, No. 21,043 reported in the appendix to V anderstraaten’sReports, p. XLV1. In my experience of thirty-seven years theRoman-Dutch law of a continuing community has never been revived.
I have discussed the main points raised in appeal. In view of myfinding that the deed of gift No. 232 was invalid for want of acceptancethere was no necessity to deal with the contentions considered in thelatter part of my judgment. I have done so out of deference to the fulland able arguments which were addressed to us and as there is a possi-bility of the case being brought' before a higher tribunal. We are, Iventure to say, greatly obliged to counsel for the assistance we receivedfrom the arguments addressed to us in appeal.
In view of my findings that the deed of gift is invalid for want ofacceptance and that whatever claims the plaintiffs and their fatherotherwise had are barred by prescription, the appeal must be dismissedwith costs.Appeal dismissed.