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JAYEWAEDENE et al. v. JAYEWAEDENE et al.
D. C., Colombo, 19,889.
Fidei commiasum in favour ' of two children of the testator and theirdescendants—How the order of succession is to he regulated—Enjoyment of half share by descendants of each institute—Natureof the fideicommissum—Howlong it wouldendure—Joint
A and B, husband and wife, by their will devised certain property to• their children, 8 and H, subject to a fidei commissum which they expressedas follows: "That our children or all the children and grandchildrenwho may descendfromS and H shall hold possession of the same,but
they shall neithersell,mortgage,nor give the same as gifts, and when
there be no descendants from these two, one-half of the said land shallbe left for charity, and the other half shall devolve on the eminentGovernment. ” Intheway ofpossessing the property, each ofthe
institutes (S and H) enjoyed half its rents and profits, and the childrenof each of them divided equally among themselves the half enjoyed by■ their parent. Oneof the threechildren of S, who thus was inthe
enjoyment of a sixth share, married L, daughter of H, and died leavinga daughter E, who succeeded to the enjoyment of the sixth share. Edied leaving L (her mother) as her only heir.
Held bj Wendt, <T., and Grenier, A.J. (Layard, C.<T. die.), that in thedevolution of the right to enjoy the sixth share of E the rule ofintestate succession was not to be followed, and the sixth share of Edid not therefore pass to her mother (L), though a descendant ofone of the institutes, but to the remaining descendants of S.
Per Wendt, J.—Thereare noword®indicatinga desire that the
property should be divided between the two children first instituted.
It is, on the contrary, devised to both jointly, the result being that, solong as any descendant of either was alive, the fidei commissum could notfail.
Per La?ard, C.J.—The entire land settled upon. the institutes ismade the subject of one fidei commissum, and the bequest is not in theform of a disposition of one-half of the whole to each of the institutes,but a gift of the wholeto thetwo institutes jointly withbenefit of
survivorship and with substitution of their descendants; and thetestator and testatrix nothavingsettleda definiteorder ofsuccession,
the order of succession abintestateshouldgovern solong asthe heir-at-
law is in the direct line of descent from one or ''other of the institutes,and the share in dispute therefore passed to L.
HE facts of the case are as stated above. .The District judgeheld that the share of E passed not to L (mother and sole
heiress of E), but to the other descendants of S. The tenth*defendant, i.e., L, appealed.
Walter Pereira, K.C. (E. W. Perera with him), for appellant.—The Boman-Duteh Law that is applicable to a case like this isclear. It is that where the testator has indioated no particular
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order of succession, the devolution is to follow the ordinary ruleof succession' ab intestate. If this rule is to be disregardedthere will be no principle or consistent rule of succession to befollowed. The respondents also would seem to apply the rule ofintestate succession while limiting the succession in respect ofeach half share to the descendants of each of the originalinstitutes. If, for instance, a descendant of S died without issue,it would, he supposed, be said by respondents that his sharewould go to his collateral or ascendant heirs, provided such heirsanswered to the description of descendants of S. That would befollowing the rule of intestate succession. The question then is,Why should succession to a separate share of the property belimited to any one of the two institutes and his descendants ?The bequest is one of the whole property to the two institutesjointly, and not of a half to each. He cited T'oet, 36. 1. 30, andCensura Forensis, 1. 3. 7. 11 and 80.
Sampayo, K.C., for respondents.—The authorities cited apply onlyto the particular cases mentioned in them. Voet, for instance, dealswith a fidei commissum left to the family of the testator by him,and the Censura in section 11 cited also speaks of such a fideicommissum. Section 20 refers to a case in which a testator hascalled his heirs to the inheritance in general terms. In thepresent case the devise was to two individuals by name, and.it isclear that the intention was to regard the descendants of S and Has two distinct classes, each being entitled to enjoy a half of theproperty devised.
Pereira, K.C., in reply.-—Voet and section 11 of the chapter of theCensura cited no doubt refer to a fidei commissum- to the family,but the rule as to intestate succession is laid down as a ruleapplicable to such a case, it being a general rule applicable to allcases where no particular order of succession is indicated. Section20 of the Censura makes matters quite clear. There, the authoris dealing inter alia with fidei commissa in favour of childrenor sons and their heirs and in favour of brothers and theirchildren (see sectioa 19), and it is laid down, as a general rule,that when the testator does not arrange a definite order ofsuccession, he is considered as leaving this to be settled by the rulesof intestate succession. –
Cur. adv. vvlt.
31st October, 1905. Wendt, J.—
The facts necessary to the decision of this appeal are fully setforth in the judgment of the District Judge, and I need nottherefore recapitulate . them. The last will u)on which the
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question arises expresslydeclares thatthepropertyin question 1906.
“ shall be considered as fidei commissionThis is followed OctaberSl.by a direction that the testator’s children and the children and Wkndt, J.grandchildren .descending from the testator’s two children(naming them) shall hold possession of* the same, with expressprohibition of alienation or encumbrance; and the ultimatedestination of the property " when there be no descendants, ofthese two ” is provided for. The property is therefore demisedto the two children with substitution of their descendants, andparties are agreed that just* as each of the original devisees(the fiduciaries) enjoyeda moiety ofthepropertyduring his
or her life, so the moiety of each has rightly devolved on his or herrespective descendants. Emilia Sophia, one of the grandchildrenof the testator’s daughter, Soovinita, having died without issue; thequestion arises as to thedestination oftheone-sixthshare with
which she was admittedlyvested. Is itto go- to hermother, the
tenth defendant and appellant,, who, although her sole heir abinte8tato, is not a descendant of Soovinita, but of her brotherHendrick; or is it to go to the surviving descendants of Soovinita;viz., the plaintiff and the first nine defendants ? The conten-tion for the respondents is that so long as descendants of Soovinitaexist no interest in the moiety which she enjoyed can pass to aperson who is not descended from her. There are no words indi-cating a desire that the property should be divided betweenthe two children first instituted. It is, on the contrary, devisedto both jointly, the result being that so long as any descendant ofeither was alive the fidei commissum would not fail. The appel-lant accordingly admits that in the event of her dying withoutsurviving issue the moiety, which she now has, derived from theinstitute Hendrick, would pass over to the surviving descendantsof the other institute, Soovinita, and could not be treated as herabsolute property as upon a failure of fidei commissaries. Thecontention for the appellant is that upon the death of eachfiduciary his share devolves on his heirs ab intestato, provided theyare descendants of the creator of the fidei commissum, this pro-viso being, it is said, imposed by the last will. The last will,however, does not mention descendants of the testators, but de-scendants of their two children, the institutes, and, as admitted, amoiety descended in the line of each institute, the ab intestato heir ,suggested by the appellant will have to show descent from the*institute whose moiety contributed the share in question. Theappellant does not satisfy that requirement. I have carefully;considered the passages of Voet (ad Pand36, 1, 30) and VanLeeuwen (Cen. For., bk. 3, chapter 7, sections 11-20) which the22-
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October 31.Wkndt, J.
learned counsel for the appellant relied upon as establishing hiscontention, and I think they do not apply to the present- case.Voet in sections 27, 28, 29 and 30, of the title referred to is dealing-with a fidei commissum “ left to the family,” either in those verywords or by means of a prohibition of alienation out of the family,and thereupon discusses such questions as who would be consid-ered as “ in the family; ” whether the fidei commissum would besatisfied by a single act of restitution to the family or wouldrequire to be repeated by the persons to whom such restitution wasmade; the right of a fiduciary to make a selection among theindividuals of the indicated class of fidei commissaries, &c. Insection 30 the author says:—“ If it be asked who must be cdn-sidered the next of kin in the family in the matter of such agraduate or perpetual fidei commissum, the answer would seem tobe that the order of succession ab intestato ought to govern; forit has been held by most authorities that fidei commissa leftto the family follow the analogy of succession ab intestato, andare governed by the rules and principles pertaining thereto,whenever the testator has failed to designate. a certain order in thefamily. So much so that the right of representation is admittediu such fidei commissary succession in the same lines and gradesas those in which legitimate succession allows it in conformitywith the different customs and usages of different- countries.”I quote from McGregor's Translations, p. 81. This only means, Itake it, that if a testator declares, " I give all my lands to my familyand desire that they shall ever remain unalienated in the family,”then on his death the lands will pass to this ab intestato heirs.If he has left two children, they will each take one-half. If therebe also three grandchildren (the issue of a deceased child) theywill take each one-ninth (all three together taking their parents’one-third ” by representation ") and the children one-third each.So with the citation from the Censura. Section 10 deals withthe inefficacy of a mere prohibition against alienation, and adds:
‘ ‘ But if the testator have also stated the ground of the prohibitionor his reason for it, as for instance if he have said that he forbidsthe alienation of tfie property in order that it may be preservedand remain in the family; by reason of this, the prohibitionitself is regarded as confirmed so that it is valid, and a fideicommissum is created and (it is rendered) .certain that the familyis to be called to succeed to this thing in question by virtue of afidei commissum.” Section 11 then proceeds: ‘‘ Now when a fideicommissum of this kind has been imposed in which the testatorhas made known his desire that his property shall not be alienatedaway from his family or blood relations, and itas not expressly
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called his next relations to the succession, but has only expressedhis desire that the property shall not devolve on any one notrelated to him, without giving any definite order or rule ofsuccession, the nearest relations of the last possessor, who are alsorelated to the testator, succeed as on intestacy, and it is not near-ness of relationship to the testator, who has imposed the burden,but proximity to the last possessor, on whom the burden has beenimposed, that is taken into account; since the testator is regardedas having merely effected by this provision, and as having onlyhad for his object in it, the prevention of the transmission ofsuccession of his property at any time to people not related to him,and hence, since he has shown no anxiety as to the order andmode of succession, he is considered' as having left this to besettled by the Common Law.'* I quote from p. 98 of Foord’sTranslation. Section 2 deals, as Voet does, with the “ right ofrepresentation." The principles thus laid down by the commen-tators have no application to the present case, because the testatorshave not called “the family" generally to their inheritance. Itis given specifically to two individuals (their being the whole abintestato heirs is an accident) and to – their children and grand-children. But even assuming that the descendants intended aredescendants of the testators and not of the institutes, I think theappellant is still excluded, for those descendants, in the case ofthe moiety given to Soovinita, must surely in the first instance belooked for in Soovinita's line; failing these, it may go over tothose in Hendrick's line. For these reasons I think that theappellant's claim fails and that the appeal should be dismissedwith costs.
Grenier, J.—The facts in this case are all admitted, and theonly point for determination is one which depends upon the'construction to be placed on the last will of the original ownersof the land in question. The portion of the will in regard to themeaning of which the parties are not in agreement runs asfollows :—“ We do hereby direct that our dwelling garden shallbe considered as fidei commissum from and after our death, andthat our children, or all the children who may descend from ourchildren, Soovinita and Hendrick, shall only possess the same, butshall neither sell, mortgage, nor give away the same by way of gift,and when there be no descendants from these two persons one-half df the said property shall go for charity and the other halfdevolve on the eminent Government." Now it seems plain to methat the testator^ and testatrix in imposing a fidei commissum onthe property intended that the property should * be considered as
October 01.Wendt, J.
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1905. divided into two parts, and that one-half should be possessed by°c<0&er 3J' the descendants in the direct line of succession of Soovinita andOrbotbr, J. the other half by those of Don Hendrick. This intention wasmade clearer by the latter part of the clause 1 have quoted fromthe will, that in the event of there being no descendants ofSoovinita and Don Hendrick *' one-half of the property shall gofor charily and the other half shall devolve on the eminentGovernment.*' The fidei commisaarii were by the terms of thewill to possess the property, and I take this to mean that so longas there were descendants of Soovinita and Don Hendrick it wasto be possessed by them in two equal shares. It was only in .theevent of there being no descendants on both sides, which forsome reason or other the testator and testatrix thought mightprobably occur,. that the Government and the poor generallywere to benefit to the extent of half each. I think I would bedoing violence to the language of the will and putting a con-struction on it which would defeat the intention of the testatorand testatrix, if I were to hold that they showed no indication asto the order* and mode of succession, as contended for by thelearned counsel for the appellants; To my mind it is beyondquestion that the testator and testatrix in burdening the propertywith a fidei commissum intended to benefit the descendants ofSoovinita and Don Hendrick, regarding them as two distinctclasses, and that it was never their intention to make the ordinarylaw of intestate succession apply in such a way as to deprive themembers ofeither class of anypart ofthe half sharewhich
otherwise would belong to and remain with that class. Certainlythey never contemplated the case which has now arisen inconsequence of Soovinita*s son, Lewis, marrying Don Hendricksdaughter and having issue. In my opinion nothing could havebeen further from their intention than that such a marriage andits consequences should affect the right to the possession of theentirety of a half share which they had expressly given toSoovinita and Don Hendrick and his and her descendantsrespectively. It is not as if Hendrick has no children, althoughhe has no grandchildren. The tenth defendant, as the onlychild of Hendrick, is entitled to the possession of a half of theproperty inquestion and nothing more,the possessionof the
•other half being rightly with the grandchildren of Soovinita.Xo question of the Jus accrescendi will, arise until the death ofLouisa, provided she does not marry again or have children.The DistrictJudge has, I think,on thewhole, taken acorrect
view of thequestions involved inthis case, and I woulddismiss
the appeal with costs.
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Layabds, 0. J.—*
Gabriel and his wife were the owners of the land a sharewhereof is claimed by the plaintiff in this case. They devisedthe land to their two children, Soovinita and Hendrick, in thefollowing terms:—“We do hereby direct that our dwelling garden
.shall be considered as fidei commissum or entailed from and
after our deaths; that our children or all the children and grand-children, &eM who may descend from Pantiage Dona SoovinitaDabere Hamine and Pantiage Don Hendrick Dabere shall holdpossession of the same, but they shall neither sell, mortgage, norgive the same as gifts, and when there are no descendants fromthfese two one-half of the said land shall be left for charity, andthe other half thereof shall devolve on the eminent Government.”It is admitted by the parties to this appeal that these wordscreated a valid fidei commissum in favour of the two institutesand their descendants.
According to the terms of the will the entire land settled uponthe two institutes is made, the subject of one fidei commissum.(Tillekeratne v. Abeysekere, Privy Council Judgment, 2 N. L. R.313.) The bequest . is not in the form of a disposition of one-half of the whole to each of the institutes, but a gift of the wholeto the two .institutes jointly, with benefit of survivorship and withsubstitution of their descendants (Tillekeratne v. Abeysekera).The testator and testatrix have not settled a definite order ofsuccession, and the question to be decided is what rule, in viewof the facts hereinafter stated, is to govern the succession to theproperty. In 1858 Soovinita died leaving three children, viz.,Henry, Justina, and Louis; and Hendrick died in 1859 leavingLouisa, the tenth defendant, his only child. The grandchild Henrydied in 1881 leaving three children, viz., the plaintiff, the-firstdefendant, and Samuel, who died in 1898 leaving two children,the second and third defendants. Justina, Soovinita’s child, died in1896 leaving six children, the fourth to ninth defendants. Louis,Soovinita’s son, married bis first cousin, Louisa, the tenth defend-ant, and he died in 1861 leaving surviving him his only child ofthat union, Emelia Sophia, who died unmarried and intestate in1881, leaving her mother as her sole heiress.
Louis, it is admitted, became entitled to one-sixth of the pro-perty on his mother’s death, and on Louis’s death his daughterEmelia succeeded to that share subject to the fidei commissumcreated bv the will. The question now at issue between theparties is as to who should succeed to Emelia’s one-sixth. Theappellant contends that Emelia’s mother and sole heiress isentitled to it, while the plaintiff contends that it passes to the
10^J. K.3 6920(4/51)
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1905. remaining descendants of Soovinita, viz., the plaintiff and theOetoter 3!. firgt to nil1j.[H defendants. It is clear that the respondent’s conten-Lavabd.C.J. tion would be correct if the bequest had been in the form of a dis-position of half share of the whole to each of the institutes; but,as I pointed out above, it was a gift of the whole to the institutesjointly, with benefit of survivorship and with substitution of theirdescendants (see Tillekeratne v.Abeysekere). The testator
not having arranged a definite order of succession, I gather fromthe passages cited by appellant’s counsel, to which I shallpresently refer, that the order of succession ab intestato ' shouldgovern so long as the heir-at-law is in the direct line of descentfrom one or other of the institutes, and that the share in disputewill pass to Emelia's mother, she being in such direct line' ofdescent, as well as being a substitute under the provisions of thewill. Van Leeuwen in the Censura Forensia, bk. 3, chapter7, section 20, thus lays it down:—“ The opinion is generallyreceived and is undoubtedly correct if the testator have called hisheirs (to the inheritance) in general terms and have not expresslysummoned the nearest of them or have simply expressed hisdesire that the goods are not to devolve on any one not related tohim, because when the testator does not arrange a definite orderof succession, he is considered as leaving this to be settled by theCommon Law, according to which fidei commissaries succeedaccording to the order and rules of intestate succession.” It isunder these rules that Emelia succeeded to the one-sixth share, andI think the same rules must prescribe to whom it passes fromher, provided always that her heir-at-law is in the direct lineof descent from one of the institutes, which is the case here.
Voet, bk. 36 tit. 1, 30, dealing with the question as to who isto be considered the next of kin in the family in the matter ofgraduate and perpetual fidei commissum, says:. ” The answerwould seem to be that the order of succession ab intestato oughtto govern, ” and goes on to point out that it has been held by mostauthorities that fidei commissa left to the family follow theanalogy of succession ab intestato, and are governed by the rulesand principles appertaining thereto whenever the testator hasfailed to designate a certain order in the family.”
It has been pointed out that the commentators are dealingwith the case in which the testator has called ” his family ”generally to the inheritance. What has happened in this 'case ?The testator and testatrix have called “ their children or all thechildren and grandchildren,” &c., who may dq^cend from theirtwo only children) Soovinita and Hendrick. Surely this is oallingtheir family generally to the inheritance. They do not allude to
any one but their children and their descendants. The instituteswere their only children, and the object clearly was to call theirfamily generally to the inheritance. It is remarkable thatcounsel for the respondent was unable to adduce any authorityfrom the commentators to support his contention- To upholdthe respondent’s contention it will be necessary to hold that amoiety descended in the line of each institute, and that theab mtestato heir suggested by the appellant must be descendedfrom the institute whose moiety contributed the share in ques-tion. As I said earlier in this judgment, I cannot so hold in view ofthe decision of my Lords of the Privy Council in Tillekeratne v.Abeysekere. There, the property was divided into two and theinstitutes of one-half share consisted Of the three grandchildrenof the testator and testatrix, and the property was to be inherited“ according to custom ” by them and " their descendants.” Theirlordships stated that they had little “ difficulty in coming to theconclusion that according to the terms of the will the entire moietysettled upon the grandchildren is made the subject of one and thesame fidei commissum. The bequest is not in the farm of adisposition, of one-third share of the whole to each of theinstitutes, but the gift of the whole to the three institutes jointly,yith benefit of survivorship and with substitution of their• descendants. Following the terms of the gift, the substitutionijxust be read as referring to the whole estate settled upon theinstitutes as a class. ” I cannot distinguish this case from the one.ctfealt with by the Privy Council, and am bound to follow theruling m that case.
If we follow Van Leeuwen and Yoet, then we have certainrules and principles to guide us; otherwise we take uponourselves the responsibility of designating a .certain order ofsuccession to the institutes which the testator and testatrixadvisedly omitted to do, being quite satisfied to leave the propertyto the two institutes jointly with benefit of survivorship andwith substitution of their descendants. We cannot convertthe bequest into a disposition of one-half share of the whole toeach of the institutes from a gift of the* whole to the twoinstitutes jointly. The object of the testator and testatrix wasto keep the property in the family and the succession to thedescendants of the institutes. Louisa is Amelia’s heir ab intestato, .and she is the heir substitute of the institute Hendrick, and beinoa descendant of one of the institutes cannot, in my opinion, be
deprived of her right as such heir ab intestato to succeed toEmelia’s share. I think the judgment of the District Judge iswrong and mu^k be set aside and the plaintiff’s action be dismissed.
JAYEWARDENE et al. v. JAYEWARDENE et al