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Present: Mr. Justice Wendt and Mr. Justice Grenier.FONSEKA et al. v. BABUNONA.
D. G-, Galle, 8,633.
vivor—Power of alienation.
A jointlast willmadebyhusband and wifecontainedthe
" 8.—Wedo herebydirectthatafter the death ofeither oftia,
the survivor of ns may only possess the produce of our estate assuch survivor may please, and we do hereby prohibit the survivorof us, after the death of either of us, bom in any manner alienatingaccording to the survivor’s sole will the movable sand immovableproperty belonging to our estate.
" 4.—Wedo herebydirectthat after the death ofboth ofus,
should there remain unspent any movable and immovable property,the sameshould bedivided into two equal halves, one-halfto
go to the heirs by blood of Gampolage Adirian Fonseka, and the.remaining half to the heirs by blood of Christina Andra Waas.'*Held, that under the above provisions the survivor had onlya usufruct in the property, and had no power to alienate anypart of it.
PPEAL from a judgment of the District Judge of Galle(K. W. B.-McLeod, Esq.). The judgment was ets follows: —
“ Adirian Fonseka and' his wife Christina de Waas, married incommunity of property, executed their joint will on May 7, 1869,the 3rd and 4th clauses of which are as follows: —
“ ‘ 3.—We do hereby direct that after the death of either of us,the survivor of us may only possess the produce of our estate assuch survivor may please, and we do hereby prohibit the survivorof us, after the death of either of us, from in any manner alienatingaccording to the survivor’s sole will the movable and immovableproperty belonging to our estate.
“ ‘ 4.—We do hereby direct that after the death of both of us,should there remain unspent any movable and immovable property,the same should be divided into two equal halves, one-half to goto the heirs by blood of Gampolage Adirian Fonseka, and theremaining half to the heirs by blood of Christina Andra Waas.’
“ The will appointed as executors the survivor and LiyanageMathes (husband of sixth plaintiff). Adirian died on May 8, 1869,and the will was duly proved mid probate .taken by Christina andMathes on June 24, 1869, in D. C., Galle, Testamentary, 2,286.
“ The executors, and Aberan (brother of Adirian and father offirst to fifth plaintiffs) sold the premises in question to Juan Appo
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1908. and Punchi Sinno (minor children of Matties) by deed 1,527 ofOdder 23. November 11, 1872. The executors bad applied for leave to Courtin the testamentary case 2,285 for leave to sell it * to pay off thedebts appearing in the account as due to Mr. Keegel. ’ The orderof Court was ‘ Allowed if there be no other heir, whether majoror minor.’ Thereupon Aberan signed his consent to the executors’motion as ‘ heir of the testator.’
“ This was in October, 1872. I do not find any further order ofthe Court. I suppose it was taken for granted that the conditionalorder cited above became an absolute authority on Aberan signifyinghir consent, and the sale of November 11 was held by authority ofthe Cour,t order.
“ Punchi Sinno sold his half to Juan by deed 11,020 of September29, 1891. Juan thus became entitled to the whole. Juan sold itto Arnolis by deed 21,873 of September 6, 1899. Arnolis diedintestate, and defendant, his widow, is the administratrix of hisestate (D. C., Galle, Testamentary, 8,653). She obtained theleave of Court, and the premises were sold by public auction toJuwanis Appu.
“ Christina died on February 14, 1907, and plaintiffs claim halfof the premises as next of kin to Adiriau, contending ■ that theclauses recited above constituted a fidei commissum, and thereforethe deeds of transfer are all invalid as against them.
“ The matter was argued at some length before me, but I think,on the translation of the will made by the Interpreter of this Court,and placed in evidence for the plaintiffs (Doc. P 1), that clearlythere was no fidei commiasum other than one of the residue remain-ing at the death of the survivor.
“ If section 3 alone is considered, there is a clear prohibition ofalienation in any way, but section 4 is equally distinct in sayingthe division- after the death of the survivor is to be of whatever‘remains unspent,’ whether movable or immovable property. It issettled law that fidei commiasa must-be strictly, construed, and herethere is no clear and certain expression of any intention to makemore' than a fidei commiasum of the residue.
“ Mr. C. E. de Vos puts in evidence (Doc. P 2) an applicationmade by Christina in 1903, to sell certain other property belongingtc the' common estate. But that application was the result, ofcourse, of the opinion of her legal adviser, that it was desirabletd get formal sanction of -Court, probably to avoid any possiblelitigation hereafter, and it cannot be allowed to affect my mindwhen, I have to decide what in truth is the proper meaningof the will.
' As -I am unable to construe sections 3 and 4 of .the will asestablishing beyond all doubt a fidei commiasum of anything-morethan'the-residue^ I do not go into the other points argued before me.Tditaiiss plaintiffs' case with costs.”
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'Che plaintiffs appealed.
Bawa, for the plaintiffs, appellants.
A. St. V. Jayewardene, for the defendant, respondent.
Cut. adv. vult.
October 23, 1908. Wendt J.—
This is an action to vindicate a half share of a boutique in theGalle bazaar, and it has been dismissed in accordance with thefinding of the District Judge upon an issue of law framed at thetrial in the following terms, viz.:—Did the joint will of AdirianFonseka and Christina create a valid fidei commissum in favour ofthe plaintiffs ? The learned District Judge answered this questionin the negative, and thereupon considered it unnecessary to dealwith any other issue. The answer to the question formulated inthe issue has to be sought within the four corners of the will. Thatwas an instrument couched in the Sinhalese language, and twodifferent translations of the material parts of it were before theDistrict Court. The one made by the Secretary of the Court andadopted by the District Judge renders the 3rd and 4th clauses asfollows: —
“ 3rd.—We,do hereby direct that after the death of either of us,the survivor of us may only possess the produce of our estate assuch, survivor may please, and we do hereby prohibit the survivorci us, after the death of either of us, from in any manner alienatingaccording to the survivor’s sole will the movable and immovableproperty belonging to our estate.
" 4th.—We do hereby direct that after the death of both of us,should there remain unspent any movable and immovable property,the same should be divided into two equal halves, one-half to go tothe heirs by blood of Gampolage Adirian Fonseka, and the remaininghalf to the heirs by blood of Christina Andra Waas.”
With the aid of the Interpreter of our own Court we have secureda more faithful rendering, which I shall presently quote, but firstI will say that clause 1 directs that the debts of the. two testatorsshould be paid out of their common estate, and clause 2 gives alegacy of £3 to a certain Buddhist temple, then come clauses 3and 4, which our Interpreter renders as follows: —
“ 3.—After one of us two has died, except that the survivor maypossess as he pleases the produce derived from our estate, we haveprohibited the person who may survive after the death of one ofus from making any disposition whatever according to his singlewill of the movable and immovable property belonging to our estate.
“ 4.—After the death of us both, if there be any movable or -im-movable property which has remained over after providing our
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1908;maintenance) one just half of all that may be divided and taken
0cto^9rby the heirs in blood of Gampolage Adirian Fonseka, and the
Weho* J. remaining half by the heirs in blood of Christina Andra Waas.”
The contention for the plaintiffs was that the surviving spousehad only a usufruct in the massed estate with no power whateverof alienation; while the defendant, who claimed under a conveyanceexecuted by the testatrix, who had been the survivor, submitted!that the combined effect of the 3rd and 4th clauses was that she wasat liberty to alienate any part of the estate, and that the devisein .the 4th clause was intended to operate on so much only of thecommon estate as was left undisposed of by the survivor of the twospouses. Having had the assistance of most able argument on bothsides by counsel well acquainted with the Sinhalese language, themeaning of the will appears to me to be clear. Clause 3 is the onlyclause which directly gives the surviving testator any interest. Itdoes not appoint him heir of the precedent testator, and does notdevise to him the dominium of any property of the estate, butexpressly limits his interest to the possession of the produce orincome, and, as if further to emphasize the limitation, expressly. prohibits him from alienating the movable and immovable propertyin any manner whatsoever. The reference to the survivor’s singlewill does not, in my opinion, imply that, if he acted with theadvice or concurrence of an executor or an heir, his alienation of theproperty would be valid. Clause 4 contains the ultimate devise bywhich the estate is to be divided in equal moities by the heirs ofeither testator. The words in this clause which are said to imply apower of alienation not given by clause 3 have, in my opinion, avery different effect. They serve rather to emphasize the limitationto' a mere possessory interest. The words are “ if there be anymovable or immovable property which has remained over afterproviding our maintenance ” (literally, after eating and drinking).If it be considered that the terms of clause 4 beyond doubt implythe power of alienation, still that, implication may stand side by sidewith the denial of any larger right to the surviving spouse thanthe right to possess. For the testators may, in using the languageembodied in clause 4, have remembered the injunction in clause 1as to the payment of debts, which might involve the necessity ofrealizing some of the property, or they might have contemplated aprolonged joint life before the will became operative.
This question of the right of the surviving spouse to alienate was,as I understand it, the question which issue No. 1 was intended to'propound, although it is framed as if there could not be an effectiveprohibition without a fidei commissum. That is a wrong view ofthe law. In fact, according to my reading of clause 3, the expressprohibition was mere surplusage, inserted perhaps ex abundanticauteld. The fundamental distinction between fidei commissum andusufruct ought always to be borne in mind. In the former the
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dominium and the right of possession are both given to A, subjectto the condition that after the specified time (usually his lifetime)the property shall pass to B, who until A’s death takes no vestedinterest. In the case of usufruct, the dominium is given to B atonce, while the right of possession for life (usufruct) is given to A.As I read the present will, it is a case of usufruct and not fideicommiasum.
The dismissal of the action will be set aside, and the case sentback for the determination of the other issues between the parties.He plaintiff will have the costs of appeal and of the hearing in theCourt below; other costs will be costs in the cause.
I would point out to the District Judge that as the record standsit does not appear that any issues have been framed; there are onlysuggestions by the plaintiffs’ proctor, and counter-suggestions bythe defendant’s proctor.
I agree. I think it is a clear rendering of sections 3 and 4 ofthe will that the intention of the testator and testatrix was that thesurvivor was to have only a life interest in the property, and not thedominium and the power of alienation.
Appeal allowed; case remitted.
October 23.Wanin' J.
FONSEKA et al. v. BABUNONA