043-NLR-NLR-V-18-FERNANDO-et-al.-v.-PERERA-et-al.pdf
1914*
( 150 )
Present: Pereira J. ami De Sanipayo A..J.
FERNANDO et al. v. PERERA et ah232—D. (!. Negombo, 9,596.
Adiation—Massing of joint estate of husband and wife does not constituteadiation—Interpretation of will—Usufruct.
The meremassing ofthe-jointestate ofhusbandandwifefor
the purposes of a joint will does not by itself constitute adiationof inheritance under the will by either spouse. To constituteadiation there must bea distinctacceptanceof benefitsunderthe
will by one spouse after the death of the other.
Held, that the following words in a will: “ These allotmentshave beenbequeatheduntotheyoungestdaughter Isabellato
possess andto occupythesaidthree lands untilherlifetime '*
vested in Isabella no more: than a usufruct in the property.
fJIHE facts appear from the judgment.x
.4. St. V. Jayewardene, for the defendants, appellants.
Bawa, K.C., for the plaintiffs, respondents.
Gur. adv. v-ult.
September 8, 1914. Pereira J.—
Two questions arise for decision in this case. The first is as tothe nature of the devise of the lands in claim in the joint will ofPaulu Fernando and Maria, the 6th defendant, and the second iswhether there was an adiation by Maria of the inheritance underthe will. As regards the first, it seems to me that the object ofthe testators was to create a fidei commissum of the property inclaim in the hands of Bastian in favour of his male issue. Clearly,the bequest to Isabella was not a bequest of the property itself,but of Its income. In other words, what was vested in Isabella wasa mere usufruct. The words bearing bn this point are: " These(allotments) have been bequeathed unto the youngest daughterIsabella to possess and to occupy the said three lands until her
( IS l )
lifetime, " meaning obviously ** during her lifetime. M Had thebequest been a bare bequest without qualification, it would perhapsbav6 been open to the contention that what was intended was abequest or devise of the corpus, but the object of the bequest isexpressly and plainly stated in the will, and that is, to possess andoccupy. The right of property in the lands in claim—a righthaving many attributes other than possession and occupation—isnot vested in Isabella.
As regards the next question, namely, that of adiation of theinheritance under the will by the 6th defendant, it has been saidthat there has been a massing of the estate, but as is laid down inNathan's work- on the Common Law of South Africa (vol. III., p. 1845);n the authority of a South African case, Barry v. Kunhardt’sKzecutors,1 the mere massing of the joint estate does not constituteadiation. There must be a distinct acceptance of benefits as well,and in order to bind the survivor there must be clear proof ofsome unequivocal act of adiation on the part of the survivor afterthe death of the other spouse, so as to debaT the survivor fromclaiming what undoubtedly belongs to him or her as his or herabsolute property at the time of the other spouse's death (Nathan.col. 111., p. 1844). In the present case, in my opinion, there is noevidence whatever of any act of adiation by the 6th defendant.The learned District Judge was apparently looking for some act onihe part of the 6th defendant that was tantamount tjo a revocation;>f the will by her. What had to be established was .a positive act■f adiation. rather than an act that was tantamount .to revocationr the will, and that had .to be done by the plaintiffs. The factsnroved, in my opinion, indicate repudiation rather than adiationby the 6th defendant of benefit under the joint will.
I would vary the decree and declare the plaintiffs entitled toonly a half share of the allotments of land described in it, andreduce the damage awarded to the plaintiffs to Rs. 368, that is tosay, a half of Rs. 400 plus a half of the further damage awardeduntil 5th September, 1914.
I think that each party should bear his own costs in both Courts.De Sampayo A.J.—I agree.
Varied. *
1914.
PebeiciaT.
Fewunulov. Perera
* 2 S. C. 89.