119-NLR-NLR-V-57-H.-KIDA-SILVA-Appellant-and-H.-BUILIS-SILVA-et-al-Respondents.pdf
4954Present : Pulle, j., and Swan, J.H. KIDA SILVA, Appellant, and H. BUILIS SILVA et all,Respondents
S. C. 160—D. G, Colombo, 6,216
Fidcieommissum—Designation oj Jideicommissaries—Use of word “ or ”—Does notalways bear substitutionary meaning.'
A rather gifted a J share of a land to his sou B. S. subject to a ficlcicommissurrt•in favour of B.S’s children. On the sarao day ho executed three other deedsgifting a {111 share of the land respectively to each of his three daughters ; eachdeed was subject to the following conditions :
“ I tho said donor do hereby reserve to myself the right of enjoying the rent*issues nnd profits of all tho premises described in the schedule hereunto duringmy Iifo ; and also subject to the conditions that the said donee shall not sell,mortgage or otherwise alienate the said premises but after her death tho sameshould evolve on B. S. or her lawful heirs. ” (B. S. was the aforementioned soncf tho donor.)-•■
Held, that none of the deeds in favour of the daughters created a fideicominis*sum inasmuch as the fideicommissaries were not sufficiently clearly designated.Tho word “ or ” could not, in tho context in which it was used, be given the usualmoaning “ whom failing ”.
A
XdPPEAL from a judgment of the District Court, Colombo.
S. IF. Walpita, with J. H. M. Per era, for the plaintiff appellant.Ho appearance for the defendants respondents.
Cur. adr. vitlt.
May 10, 195-1. Ptr.r.K, J.—
The plaintiff who is the appellant sought to partition the land depictedin Plan No. 90 of 20th August, 1951. There were three defendants ofwhom the first was her brother Hathimuni Builis Silva, to whom sheallotted a Jsharc and the second and third her sisters to each of whom sheallotted a 1/Gth share. The plaintiff claimed the balance 1/Gth. The2nd defendant Hathimuni Gardin Silva died pending the action. Theprincipal question for determination is whether upon her death her sharepassed by intestate succession to the plaintiff and the 1st and 3rd de-fendants or whether by reason of the provisions contained in a deed ofgift No. 872 marked P4 from her father dated the 29th Julj', 1938, hershare passed exclusively to the 1st defendant. The donor, Hathimuni•Martin Silva, the father of the plaintiff and the defendants, executed onthe-29tli July, 193S, three other deeds Ho. 871 marked ID 1, Ho. 873□narked P5 and Ho. 874 marked PG. By deed Ho. 871 Martin Silvadonated a half share to the 1st defendant subject to a fideicommiss.um infavour of the 1st defendant’s children. Deeds Nos.'872, 873 and 874 werein identical terms by wliicli Martin Silva gifted a 1/Gth share respectively
to each of Iris daughters. The case for the 1st defendant is tlxat thesedeeds also created fideicommissa in his own favour and the learned DistrictJudge has so held.•
The donor made tlie gifts to his daughters subject to the followingconditions :
“ I the said donor do hereby reserve to myself the right of enjoyingthe rent-, issues and profits of all the premises described in the schedulehereunto during my life; and also subject to the conditions that thesaid donee shall not sell, mortgage or otherwise alienate the said pre-mises but after her death the same shoirid devolve on Hathimuni BiiilisSilva or her lawful heirs. ”
Now the submission on behalf of the plaintiff both here and below isthat if the donor intended to create a fideicommissum he did not succeedin giving effect to his intention because there is not in the deed a suffi-ciently clear designation of the fideicommissaries. On a literal readingof the deed it would seem that upon the death of the donee either the1st defendant succeeded to the whole of the property donated or he suc-ceeded jointly with the plaintiff and the 3rd defendant. Could one saywith reasonable certainty from the beginning in whom the property wouldvest upon the death of the donee ? Before answering this question Ishall analyse the reasons which appear to have weighed with the learned■Judge in holding that there was a sufficient designation of the ultimatebeneficiaries.
There can be no doubt, as the Judge says, that fideicommissaries canbe indicated in the alternative or successively or as a class by the use ofthe word “ heirs ”. The basic point of the decision is expressed by himas follows : .
“ The recipients were to be Builis Silva in the first instance andfailing him the intestate heirs of the donees. There is in my opinion aclear designation of the fideicommissaries in the substitutional senseindicated by the use of the word f or ”
Por this proposition lie relies on a footnote at p. 269 of Professor T. Nada-rajah’s. work on the Roman-Duteh Law of Pideicommissa where it isstated,.
“ Although the meaning of the word ‘or’ must in each case be a. question of fact, the South African courts have followed the viewof the English courts that, generally, where there is a bequest.to ‘ A ’or ‘ B the ‘ or is used in a substitutional sense. ”
The learned author refers to In re Estate of Albertyn, 1 and PedumFernando v. Mary Fernando 2. In the former case the court had toconstrue a paragraph of the will which reads in effect as foliows :"
“ 3. To my nephew C the interest on a capital of £5,000 and afterhis death the interest on said capital shall devolve on his child J. orsuch other lawful issue by subsequent marriage him surviving in equalshares who shall likewise only be entitled to the interest bn the capitalin equal shares. ”’''''
11920 C. P. D, 214, 253—255.* 4G AT. B. R. 44.
At the time the will was made C had only one child by his first marriage,namely J, and his ■wife was then dead. C married a second time and hailtwo children. One of the questions which had to be decided was whether'in the event of C’s death, J and the two children of G would succeedjointly to £5,000 ; or whether J alone would succeed, if J survived his-father. G. The decision was that upon C’s death J, if alive, would bevested absolutely with £5,000. It was further held that if J predeceasedC, the two children would succeed in equal shares. In the course of hisjudgment Van Zyl, J., after citing the case of Bowman v. Bowman *,said,
“ It seems to me that it will be in accordance with the ordinary andnatural use of the English language if * or ’ in paragraph 3 is taken to beequivalent to ‘ whom failing’. ” He went on to add,
“ I am further strengthened in my view that a decision should be givenin favour of the sixth defendant as against the other children of the fiftlrdefendant by two circumstances. Firstly, the sixth defendant was theonly child the fifth defendant had when the testator made his will, andit seems to me neither unnatural nor unreasonable to assume that to themind of the testator, when he made his will, the sixth defendant wasmore important than any possible further children who might be born tothe fifth defendant who was not even married at the time. And secondly,the words “ who shall likewise only be entitled to the interest on the capitalin equal shares does not seem to me to be consistent with a reading ofparagraph 3 which would bring in the sixth defendant on equal termswith the other surviving children. Those words clearly refer to the otherchildren only and show that the testator in drawing up paragraph 3, was-not contemplating an alternative in which the sixth defendant shouldshare with the other children.” The fifth defendant referred to was Cand the sixth defendant J.
I have cited in extenso from the judgment of Van Zyl, J., to show thatthe word “ or ” in the context of P4, P5 or PG cannot automatically begiven the meaning “ whom failing ”. By the deed ID 1 the 1st defendantreceived a £ share subject to a fideicommissuin in favour of his children.If the 1st defendant’s contention is accepted then it was not the intentionof the donor that the balance half share given to his sisters should, whenit devolves on him, be burdened with a fideicommissum in favour of hischildren. In other words he would have a free disposing power over it.
I do not sec anyr particular reason, from the bare circumstance that alLthe sisters were childless, for thinking that the donor must have intendedthat each sister’s share should devolve only on the brother. Speculationas to intention is an unsafe guide, one way or the other, especially in inter-preting a contractual instrument. Ultimately one has to fall back on thelanguage used in the instrument and gather the intention from thatlanguage with the help of such extraneous evidence as the law.permits.
The learned Judge says that the passage which I have quoted from PJshows clearly the donor’s intention to create a fideicommissum. He is,perhaps, right in the sense that a prohibition against sale, mortgage or
'IMO A. C. SIS.
alienation is often found in clauses creating a fideicommissum, but it- is noJess essential that what was in the mind of the donor must be expressedwith that degree of clarity which the Jaw demands. There are manycases in England relating to charitable trusts in which the most praise-worthy intentions of testators to benefit the public have been defeatedbecause of faulty draftsmanship. One of the best known is ChichesterDiocesan Fund and Board of Finance (Incorporated) v. Simpson and others 1in which the House of Lords held that a direction to the executors to applyHie residue of a largeestate “ forsuch charitable institutions or other charit-able or benevolent object dr objects ” as they should select was void foruncertainty. In the present case the donor did probably intend to make afideicommissary gift but he used language which left it in doubt whetherupon the death of the alleged fiduciary the property was to pass to A aloneor jointly to A, B and G. The result is that neither of the deeds P4, Po-and P<3 could be held to have created a fideicommissum. In reaching thisconclusion I have borne in mind that while generally in a will by whicha bequest is made to a person or a class “ or ” his or their heirs, issue,•children or descendants, the word “ or ” is substitutionary—Vide Stroud,1953 edition, p. 2007—the use of the word “ or ” is not conclusive that•the gift is substitutional. Williams on Executors 1930 ed. p. 7S2.
I would set aside the decree under appeal and direct that a decree be-entered giving effect to this judgment. The 1st defendant will pay theplaintiff the costs of appeal. The other costs will be pro rata.
:3vax, J.—I agree.
Decree set aside.