FERNANDO et al. v. FERNANDO et al

058-NLR-NLR-V-09-FERNANDO-et-al.-v.-FERNANDO-et-al.pdf


( 293 )
Present: Mr. Justice MoncreifE and Mr. Justice Middleton.
FERNANDO et al. v. FERNANDO et al.
D. C., Colombo, 7,016.
IPidei••-'>r..ini8S?mresidui—Alienationby fiduciarius—Security—Joint
will—Residue— Fraud—“ Inheritance ”—Property passing under will.
Property which passes by will falls within the scope of the word" inheritance "(hereditas).
In thecaseof afidei commissum residui, as a generalrule, the
fiduciarius must hand over one-fourthtothe substituted heirs,
and give security (cautio) for itsrestitution. But where spouses
byjointwillvesttheir property in thesurvivor withpower of
alienation, subject to the restitution of the residue to the heirsof both spouses, the survivor is not called. upon to find cautiontor the restitution of a fourth, and is at liberty to alienate the wholeinhis lifetime, butnot by will, but suchalienation mustbe made
ingoodfaith,andnot with the view ofdefrauding thesubstituted
heirs.
rpHE faots and arguments sufficiently appear in the judgments.
Pains, for the substituted plaintifE, appellant.
Domhorst, K. G. (Sampayo, K. G., with him), for the respondents.
Cur. adv. vidt.
7th May, 1903. Monckeiff J.—
This was a suit for partition. The Judge has dismissed it or,the ground that the plaintiffs had no title to any portion of theproperty sought to be partitioned.
Engeltina, the first plaintiff, was the wife of the second plaintiff.Busband and wife are both dead, and are represented by an ad-ministrator of their estate. Engeltina was a daughter of ManuelFernando and Adriana Swaris, who executed a joint will on the31st Decemb§r, 1860. Her four brothers, W. Johannes, JohnHenry, Martinus, and James Fernando, alone out of the twenty-one defendants answered and appeared. When Manuel Fernandodied in 1890 he was survived by twelve children and hiswidow. There seems to be no doubt that the claims of all theirchildren (if we except Engeltina and the four respondents) upon theestate of their parents were satisfied or extinguished before thedeath of their mother in 1894.
1903;May 7.
( 294 )
1903. We have two translations of the fourth clause of fthe joint will.
May The first, which is put forward by the appellant, runs thus:—
“ After the death of one of us the survivor can possess aJJ the mov-J* able and immovable property belonging to us according to his orher pleasure; and whatever property remains after the death of bothof us shall be equally divided among our children.”
The Judge says, that the following is a literal translation of theclause.—" The survivor having done as (he or she) pleased withall our movable and immovable property, (and) having possessed(the same), afterwards on the death of both of us, it is our willthat whatever remains shall be divided equally amongst our child-ren.” I append a third translation made by the Interpreter Muda-liyar of the Supreme Court.
On the 13th of August, 1870, the spousc-s executed a transferof certain property to their daughter Engeltina in considerationof their mutual love and affection for her; and Engeltina renouncedall claim to inheritance out of their estate.
Manuel' Fernando died in 1870. ' His widow died in 1894, • havingdisposed of the whole of the property remaining, by deed of gift andby will, both dated the 8th October, 1894, in favour of her sons,the four respondents.
The respondents say that Engeltina is concluded by her renun-ciation. I was at first attracted by the argument that, althoughEngeltina renounced any claim to inheritance, and that at a timewhen the joint will had been executed and both parents were alive,yet the joint will not having been altered and speaking from thedeath of the disposing spouses, it was impossible to say that thespouses had not changed their intention and determined to giveEngeltina. her share of the inheritance in addition to the donationmade in their lifetime.
The joint will of Manuel Fernando and Adriana Swaris wasexecuted on 31st December, 1860.
The deed of donation to Engeltina was executed on 13th August,.1870. Manuel Fernando died on 12th November, 1870. There-fore both of the disposing spouses were alive on the 13th of August,1870. Engeltina signed with a cross, testifying that jhe did therebythankfully accept the above gift; and the donation was made andaccepted subject to the condition and restriction that Engeltinawas not to “ claim hereafter any inheritance out of the estate ofthe said Wattamulage Manuel Fernando and B. Adriana Swaris.”
Property which passes by will falls within the scope of the word” inheritance ” (hereditas). Engeltina bound herself not to claim anyinheritance which according to the terms of a will (whether executed
( 295 )
at, or to be executed after, the date of her renunciation) would passto her out of the estate of her parents. I cannot accept the restrict-ed meaning put upon the word “ claim ” by Mr. Peiris. Engaltinaclaimed the inheritance, whether she asked for it as due ab intestatoor as left to her by will. To adopt the appellants’ view of thisquestion would be to admit not only that Engeltina did not renounoeher claim to what her parents had left her in their executed 'jointwill, but that no renunciation in these terms could include inheri-tance by will. I see no reason for thinking that the donors andEngeltina spoke of inheritance in a restricted sense.
On this ground, therefore, I think that there was no cause ofaction. But suppose Engeltina was hot concluded, did the 4thclause of the joint will give Adriana Swaris, the surviving spouse,power to alienate, and did Adriana Swaris in fact alienate in herlifetime? I think threre is little difference in effect, if any, betweenthe translations of the 4th clause. The clause seems to me to createa fidei commissum residui, a fidei commissum upon the residuewhich shall remain unspent at the death of the surviving spouse.In general the fiduciarius must hand over one-fourth to the sub-stituted heirs and give security (cautio) for its restitution; but itappears from Voet 36, 1, 56, that where spouses by joint willvest their property in the survivor with power of alienation subjectto the restitution of the residue to the heirs of both spouses,the survivor is not called upon to find caution for the restitutionof a fourth, and is at liberty to alienate the whole in his lifetime,but not by will. According to "Van Leeuwen {Censure Forensis,pt% 1, bk. 3, oh. 7, 15, and. 16) this power of alienation in the surviving6pouse is only effectual in so far as the alienation is made in goodfaith; it cannot be exercised with a view to defrauding the substitutedheirs. Voet (36, 1, 54) says: sed moribus hodiemis magis est, utfactoe per fiduciarium dolosce donations, fidei commissi intervertendi
dc fidei commissarii frandandi causa, probandee non sint Ut
tamen in dubio animus intervertendi fidei commissi in fiduciarioprmsumenaus non sit, sed probatio ex indiciis manifestis per eum, quise faudatum ait, fieri debeat. But there is no such probatio herb.On the contrary, it is said that all the substituted heirs, exceptthe four respondents, were otherwise provided for in their mother’slifetime.
Finally it was urged that the deed of gift of 8th October, 1894,by Adriana Swaris to her sens John Henry, Martinus, and Jameswas a testamentary document and of no effect ' icause the fiducia-rius could not dispose of the residuum of the property by willthat it was not an alienation sanctioned by the joint will of 1860.
1903.
May 7.
Monoreim1
J.
( 296 )
1903.
May 7.
Monobkut
J.
By the deed Andriana Swaris granted, assigned, transferred, set over,and assured ** a fourth of the property to each of the grantees.”She was to ” take, receive, and enjoy ” the rents, profits, &c., andto have the power of altering or modifying the conditions statedin the deed. Each grantee had power to ” give or appoint hisshare by last will or deed among his children or descendants accord-ing to stated terms. On the failure of his line his share was topass to the two brothers who were his co-grantees, or their descen-dants, on stated terms. The three grantees signified their accep-tance by signing the deed.
A donation is a voluntary delivery to another without cause.By a donation inter vivos the donor divests himself gratuitouslyat the time and irrevocably of the subject of donation to anotherwho accepts it. From the words used in the deed and the limitedpower of appointment which the donees could exercise in the life-time of the donor it must be thought that Adriana Swaris divestedherself of the property and delivered it to her sons. She reservedno power to revoke the deed. It was suggested that there was nodelivery because she reserved to herself .the enjoyment of the rentsand income. A donation, however, may be conditional, and I donot know that it is invalid because- the donor stipulates for theenjoyment of the income during his life. Reference was made totwo cases mentioned by Van Leeuwen (Gensura Forensis, pt. 1,bk. 3, eh. 8, 16.) One of these cases arose in connection with thewill of Hugo Koedyk, in his lifetime, Burgomaster of Ley-den. Koedyk’s wife instituted him heir to all the property with fullpower of alienation, provided that half of the residuum, at the timeof his death should be enjoyed by her relations. Koedyk, after hiswife’s death, made over to his maid servant by deed in considerationof her faithful services the full right in an obligation of 4,000 guilders,reserving the yearly income thereof to himself. The donation washeld to be invalid, but, so far as I understand, on the ground thatit was made in fraud of the heirs designated by the will of the wifeI cannot see how the deed of the 8th October, 1894, was in fraudof the substituted heirs. With the exception of the four respondentsthey had all renounced on receiving compensation, and the fourrespondents set up the deed. For all I know the d&d may havebeen executed mortis causa; it is dated the 8th October, 1894, andAdriana Swaris died on the 2nd of December, 1894; but there is nosuch allegation. I hesitate to say that it' was a testamentarydisposition.
The will of the 8th October, 1894, which left the remainingfourth of the property to W. Johannes Fernando, the tenth
/
X.
297 )
defendant, is, I imagine, void on the principle that a widow enjoyingproperty with power of alienation by virtue of the joint will of herhusband or herseJf, subject to a fidei commissum reaidui, cannotdispose of the residue by will. But, if the plaintiffs are excludedby Engeltina’s renunciation, the matter does not concern them.I think that their action was rightly dismissed with costs, and thattheir appeal fails.
Middleton J.—
I have had the advantage of reading my brother’s judgment,and shall not therefore refer to the facts of the- case, which arethere sufficiently set out.
The first question is whether the appellants on behalf of .the child-ren of .Engeltina by Engeltina’s action in becoming a party to thedeed of 13th August, 1870 (D2) are now estopped from claimingany share in the joint estate of Manuel Fernando and AdrianaSwaris, the father and mother of Engeltina. The joint will ofthese two persons, which was dated 31st December, 1860, wouldtake effect first on the death of Manuel on the 12th of November,1870. The will disposed generally of all “ the movable and immova-ble property belonging to them ” at the time of the death of thefirst of them. In. my opinion at the death of Manuel Fernandothe property mentioned in D2, had already been disposed of, andwas not therefore subject to the will. The condition of its alien-ation as it affected Engeltina was that she should not “claimany inheritance ” out of the estate of her father and mother. Themeaning of the word " inheritance ” according to counsel for theappellants is restricted to a derivation ab intestato, and he arguesthat therefore the testators under the will intended that Engeltinashould benefit thereunder as well as by the deed. The wall, however,was in existence when the deed was executed, and remained un-altered, from which the inference may be drawn that the testatorsas parties to the deed thought and intended that the word “ inheri-tance ” had and should have the wider meaning given to it inVan Leeuwen (Kotze’s translation, vol. II., p. 312), or it seems to methat after the execution of the deed the will should have beenaltered. In my opinion the word “ inheritance ” would includenot only property derived’ in intestacy. A demand to be consideredone of the persons entitled to the residue under a will cannot, itseems to me, be otherwise than a claim of inheritance out of theestate but also by will. Putting on one side, therefore, the meaningattributed by the. learned counsel- to the word “claim’’ as;
1903.
May 7.
Monobbot
J.
1903.
May 7.
Middleton
J..
( 298 )
sophistical, I hold that the appellants are estopped by the deed of13th August, 1870, from making any claim to any shath in the residueof the estate' of Manuel Fernando and Adriana Swaris. The factthat by the terms of D2 the donors renounced the 'life-interesthitherto reserved by them seems to me also to dispose of the argu-ment that D2 would be invalid as it could only take effect as awill.
If, however, the heirs of Engeltina are not barred by the deed of1870 (D2), we have to consider what is the meaning of the wordsthe translations of which are in dispute in the will of 1860 (Dl).
Looking at the translation of the 4th clause of D2, the correctnessof which is contended for by the appellants, it seems to me that thewords “ whatever property remains ” contemplate a possibledispossession of part of that which was " to be possessed according topleasure.” They would hardly, I think, operate to prevent thesale of a portion, of the estate for the debts of the surviving testatorupon the judgment of a competent Court. If their meaningextended to this, it would be difficult to say that it did, not embracea right to alienate at pleasure, at any rate up to a certain extent.These words, inferring a power of disposition in favour of the co-testator or co-testatrix, are however limited by the restrictionas regards the residue for the benefit of the joint testator’s ■children.
There is no prohibition against alienation, but there are personsdesignated on whom a contemplated residue is to devolve.
The intention of the co-testators was therefore in my opinion thatthe survivor of them should enjoy the joint estate with all the powersof an absolute owner, save and except the right of testamentarydisposition thereon; such powers to be exercised without wantonwaste, given away, or spending (Van Leeuwen, Kotze’s translation,vol. I., p. 381). This is a form of fidei commissum which is known,
I believe, as fidei commissum residui, and is common in the case ofhusband and wife, the survivor of whom is not bound to make aninventory or account (Van Leeuwen, id vol. I., p. 386), but accordingto the text of Van Leeuwen, Censura Forensis, translated into Eng-lish, Ch. VII., bk. III.,'p. 94, in point of alienation as limited to thediscretion of a trustworthy person who it has been decided is notpermitted to alienate more than three-fourths.
As regards the translation of the 4th clause of P2, I should beinclined to accept that laid down by the learned Judge in the DistrictCourt considering his undoubted knowledge of his own language,and this unquestionably discloses a power of alienation in the sur-viving spouse, but, as I have said before, a right to alienate is
( 299 )
in my opinion deducible from the wording of the translation putforward l>y the appellants themselves.
The decision of the Supreme Court in the case D. C., Colombo,56,846, relied on by counsel for the appellants and reported inVanderstraaten 203, was based on the ground that the will disclosedno express power to alienate, which theory, I presume, was derivedfrom the presumed precise terms of the Sinhalese words used, butif the English words be taken after “ 5thly ” at page 203, there isstrong reason to suppose that the learned District Judge wasright in his view of the case.
We then come to the' question whether the conveyance by deedof gift of 8th October, 1891, by Adriana to her sons John Henry,Martin us, and James was of no effect as in fact amounts to a testa-mentary disposition of the residue contrary to the intention of thefidei commissum.
In my opinion this was a donation which it was intended by theparties should not take effect until after the death of Adriana. Ifthis is so, it practically amounts to a testamentary disposition whichwould not be permissible. My opinion is founded on the terms ofthe paragraph of the document No. 1,792 marked “ First, ” whereit is covenanted that Adriana is to take, receive, and enjoy the rents,profits, and income of the premises purporting to be assigned duringher lifetime and to have the right which is hereby expressly reservedof altering or modifying the conditions therein contained and ofcreating or imposing any further condition in respect of the pre-mises gifted or the rents, profits, or income thereof without assigningany reason therefor, and that " after her death the said premises ”hereby assigned shall devolve on the said John Henry, &c.
The property purporting to be assigned is not to devolve tillafter the death of the donor, and the donor is to take the rents andprofits during her life and to have the power of imposing anyconditions she chooses. In my view nothing but a tenancy at willwas granted under this deed by Adriana to her three sons; theproperty was only to devolve on the death of the would-be donor,and this, 1 think, is an attempt to make a will by way of deed ofgift.
Although I *have the misfortune to disagree with my learnedbrother on this point in the case, I fully agree with him that thewill of 8th October, 1894.. would be also void.
Taking, however, the view I do on the first part of the case, thattiie appellants are estopped by the deed of 1870 -from making anyclaim on the residue of the estate of Adriana and Manuel. I thinkthat their appeal should be dismissed with costs.
1903.
May 7.
Middleton
J.