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Present: Garvin J. and Jayewardene A.J.JOSEPH et al. v. MAARTENSZ el ail.
D. C. Colombo, 688.
Trust—Income of property to be-applied towards the education andadvancement in life of beneficiary—Period of benefit—Duration'of lifetime—Interpretation.
Where a testator devised certain premises called Villa St.Leonards to his executors in trust to “ pay and apply the rentsafter deduction for taxes and repairs as follows :—One-half ofsuch rent to my sister-in-law M. W. during her life for her mainte-nance and to apply the other half of such rent towards the mainte-nance, education, and advancement in life of my nephew L. M. M.
I empowor my executor) if need be, to apply half the value ofVilla St. Leonards towards the education and advancement inlife of the said L. M. M. And in further trust, after the deathof the said life renters, to sell the two properties and distributethe proceeds among the residuary legatees” :
. And where the testator by a codicil directed that his niece J. J.should participate and have an equal one-third share, right, andintesest in the aforesaid house and rent,—
Held, that the bequest to J. J. did not give her a vested interestin the corpus of St. Leonards, which would pass on her death to herintestate heirs.
Held, further, that the benefit given to L. M. M. was not limitedto his minority or to any other period than the duration of his life.
^j^PPEAL from an order of the District Judge of Colombo.
Two questions regarding the interpretation of a clause in thewill of the late Mr. C. L. Ferdinands arose for determination inthis case. The material words of the clause are given in the
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headnote. The first related to the duration of the benefit toL. M. M. and the second had reference to the nature of the interestvested in J. J. under the terms of the will. The learned DistrictJudge held against the appellants who were the intestate heirs of J.J.
E. V. Perera (with Nihak- Ounesekere), for appellant.—By thecodicil Jennie Joseph is given an interest in the house in additionto an interest in the rent.
[Jayewardene J. pointed out that it was an “ equal share'right, and interest ” as the other two had.
It was then contended that Mr. Maartensz was not entitled toany rent after he was able to maintain himself. The rent was notto be “ paid ” to him but was to be “ applied " for the purpose,indicating that its duration was to be only during his necessity.
[Garvin J.—If that is correct, was the provision to cease imme-diately if the legatee came in for a large fortune at the age of 16 ?
There is a difference between giving a thing to be “ applied ” fora particular purpose and giving a thing to a person for a purpose.In the latter case the purpose does not limit its duration, in the-former its duration is only as long as the purpose or need lastsor requires. It ceases when, in the opinion of the person who has“ to apply,” there is no longer any need.
Hayley, E.C. (with N. K. Choksy), for respondents, citedWilkins v. JodreB,1 Soarnes v. Martin,2 Badharn v. Mee.3
These cases show that a provision for “ maintenance ” and“ education ” are not restricted only to minority but endure throughlife.
Such a provision is one for the “ benefit ” of the person and soendures through his life.
August 2, 1928. Garvin J.—
The questions for determination upon this appeal involve theinterpretation of certain clauses in the will of the late Mr. C. L.Ferdinands.
By the fifth clause of his will the testator devised certain premisesin Flower road, then called St. Leonards and Villa St. Leonardsand now called Yalta and St. Leonards, respectively, to hisexecutors—
“ in trust to rent the same and after, deducting from such renta percentage to pay taxes and repairs, to pay the balancerent of St. Leonards to my sisters or the survivors orsurvivor of them for their maintenance during theirlives, free from the debts and control of the husbandof any of them, their own receipts being accepted in full.
1L. J. 49 Ch. D. 26.‘ (1839) 10 Sim. 287.
(1830) 1 Russell and Mylne’s Reports 631.
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discharge, and such rents shall not he paid to them inanticipation, my intention being that the rents should beapplied for their own maintenance. And to pay andapply the rents of Villa St. Leonards after the samedeductions for taxes and repairs, as follows :—One half ofsuch rent to my sister-in-law Maria Wendt during herlife for her maintenance and to apply the other half ofsuch rent towards the maintenance, education, andadvancement in life of my nephew Lewis Matthew Maar-tensz, who has been under my care and protection for thelast seven years. I empower my executor if need beto apply half the value of Villa St. Leonards towards theeducation and advancement in life of the said LewisMatthew Maartensz. And in further trust, after thedeath of the said life renters to sell the said two propertiesand distribute the proceeds among those I have herein-after appointed the residuary legatees of this will.”
Clause 8 specifies those to whom the residue is bequeathed.
The will was executed on December 11, 1888. Some time later
the testator made a codicil which bears May 2,1891, which containsthe following clause : —
“ Whereas by the aforesaid will I made provision that the rentof my house Villa St. Leonards should be apportionedby the executor and paid to and for the benefit of MariaWendt and Lewis Matthew Maartensz, and whereas I amdesirous that my niece Jennie Joseph should participateand have an equal one-third share in the said provision,I do therefore give and devise to my said niece JennieJoseph an equal share right and interest in the aforesaidhouse and rent thereof and desire that the bequest shouldbe subject to the same condition and provision as aremade applicable to the other two devisees;'’'
Jennie Joseph died on September 8, 1919. After her deaththe proceeds of the one-third share of the rents of Villa St. Leonardscontinued to be paid in equal shares to the other beneficiaries,Maria Wendt and Lewis Matthew Maartensz.
The question was then raised as to whether they were right inso doing. A proceeding them took place which, by agreementof parties, was treated, when it reached this Court in appeal, as anapplication by the trustees for directions as to the administrationof the trust in so far as it related to the one-third share of the rentswhich by the codicil of the testator were payable during her life-time of Jennie Joseph. This Court decided in its judgment whichwill be found reported at page 481 of the 26th volume of the NewLaw Reports that upon a true interpretation of the will as modified
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by the codicil there was a separate and distinct bequest of a specificone-third share of the rent to each of the devisees, and that on the Gabvix J.death of Jennie Joseph her one-third share did not accrue to the—~
other two but fell into the residue. Upon this determination Maarten*the ease went back for the ascertainment of the residuary legateesand the precise shares to which, each would be entitled. .
In the course of the steps taken in the Court below for thispurpose certain of those who were noticed availed themselves ofthe opportunity to raise certain other questions relating to theadministration of this trust.
It is unnecessary to consider at this stage whether, as contendedin the Court below, the procedure adopted was regular, since counselfor the parties prefer that the substantial questions should bedecided irrespective of any technical objection to the form ofthe proceeding.
We were invited to determine two questions : (1) whether LewisMatthew Maartensz was only entitled to the benefit of the provisionmade by clause 5 of the last will until he attained the age of 21or at the latest till he was appointed to the office of Crown Counseland, as was contended, ceased to stand in -need of education,maintenance, or provision for advancement in life ; (2) whetherthe bequest of Jennie Joseph made in the codicil of the testatorgave her a vested interest in the corpus of St. Leonards whichat her death passed to her intestate heirs.
It was urged in support of the contention that the duration ofLewis Matthew Maartensz’s interest was limited in the way suggestedthat in the case of all the other beneficiaries specified in clause 5the bequest is said to be for their maintenance during their lives'but in his case alone the executor is directed “ to apply the otherhalf share of such rents towards (his) maintenance, education,and advancement in life.”
Now at the date of this disposition Mr. Maartensz was a boy ofabout 12 years of age and this circumstance in itself would explainthe change in the phraseology. But the principal argument whichwas addressed to us was that a limitation to the duration of thebenefit is imported by the words “ maintenance, education, andadvancement in life.” It is to be noted that there are no wordswhich expressly set a definite limit to the period of the beneficiaries’enjoyment, and the question we have to consider therefore iswhether the duty imposed on the trustees to apply the other half,which by reason of the codicil was reduced to one-third of suchrents, towards the “ maintenance, education, and advancement inlife of my nephew Lewis Matthew Maartensz ” ceased at any timeprior to the death of Lewis Matthew Maartensz, and, if so, when.
For myself I have great difficulty in confining this provision to the
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ig28. minority of the beneficiary or to any other period than the duration-— of his life. There is nothing in the word “ maintenance ” whichQABTOf J. Sports any such idea, nor .indeed is any such limitation suggestedJoseph v. by the word “ education.” There is no reason to suppose thatJlaartensztestator contemplated that the beneficiary’s education would
cease with his minority. As a matter of fact, education, even usingthe term in. the limited sense of that education which precedesthe time when one commences to enter upon a definite occupationof life often continues later than one’s twenty-first year and it isconceivable that it may continue for very many years thereafter,nor is there any such indication of a time limit suggested by thewords “ advancement in life.” If is, of course, conceivable thatthere may be benefits which are clearly and definitely limited tothe point of time at which a person is expected to enter someprofession or enter some occupation with a view to earning hislivelihood, but there are no such words in this clause, nor indeedany words other than those to which I have referred. In thecase of Wilkins v. JodreU1 a similar contention was urged inconnection with & clause in a will whereby the testator gave toa woman an annuity of £100 and directed as follows:—“ In theevent of her death the annuity to continue to her children fortheir maintenance and education . . . .” It was urged thatthe words “ maintenance and education ” confined the gift to theminority. In the course of his judgment Hall V.C. reviewed theearlier decisions on this aspect of the case. He expressly dissentedfrom the judgment of Wood V.C. in the case of Gardner v. Barber,2and following the case of Soames v. Martin3 held that the words“ maintenance or education " in such a provision, were it by wayof trust or by way of gift, does not limit the duration of the provisionto the minority of the beneficiary. The only difference betweenthe circumstances of that case and the one now under considerationis that we have here the additional words “ advancement in life,”but, as I have already indicated, these words do not appear to meto import any limitation.
As to the second of these two points, the contention that JennieJoseph took a vested interest in the corpus of St. Leonards transfer-able to her heirs does not appear to have been raised in the earlierproceeding to which I have referred, and it is a question whetherit is open to the appellants, who were parties to that proceeding,to raise it in view of the decision that the share of the rents andprofits paid to Jennie Joseph in terms of the will during her life-time now formed part of the residuary estate of the testator andpassed under clause 8 of his will to the residuary legatees mentionedtherein. But the point itself presents no difficulty. The intentionof the testator is clearly disclosed in the recitals where it refers to1 (1879) 13 Ch. 564.* 18 Jut. 608.
3 10 Sim. 287-
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the provision made by his will that the rent of Villa St. Leonardsshonld be apportioned by the executor and paid to and for thebenefits of Maria Wendt and Lewis Matthew Maartensz andexpressed his desire “ that his niece Jennie Joseph ” should partici-pate and have an equal one-third share in the said provision. Theactual words of the devise are—“I do therefore give and deviseto my said niece Jennie Joseph an equal share right and interestin the aforesaid house and rent thereof and desire that the bequestshall be subject to the same conditions and provisions as are madeapplicable to the other two devisees.” The word “ equal ” whichapplies to all three words “ share, right, and interest ” appearto me to imply equality, not merely of magnitude or quantitybut in nature and quality.
The concluding words, that the bequest should be subject tothe same condition and provision as are applicable to the othertwo devisees, clearly indicate that the provision in the last will bywhich the trustee is directed upon the death of the life rentersto sell the two properties and distribute the proceeds amongstthose appointed residuary legatees is applicable to the bequestmade to Jennie Joseph. This is fatal to the contention that itwas the intention of the testator to benefit Jennie Joseph and herintestate heirs to the exclusion of the residuary legatees so clearlyindicated by him as the person amongst whom the proceedsof those two properties were to be distributed when they wereultimately sold in terms of his will. The language of the testatorclearly and unambiguously shows that when admitting JennieJoseph to the benefit of the provision made in clause 5 in respectof Villa St. Leonards he intended that in all respects that bequestshould be similar to the bequest made by him to the other twobeneficiaries.
The appeal is dismissed, with costs, which will be paid by theappellant.
In view of some supposed ambiguity in respect' of the order forcosts made by the learned District Judge in his order dated August31,1927,1 direct, with the consent of parties, that that order shouldbe regarded as an order on the three persons, William ArnoldJoseph, John Joseph, and John Ferdinands Joseph, to pay thecosts of the contention which took place on August 31, 1927, andany costs which may have been occasioned to the respondentson August 4, 1927, which was the date for which this matter was-originally fixed.
jAYEWABDEiTE A. J.—
I agree, and wish to add that a provision for maintenance andeducation according to the more recent authorities is not limitedto minority but creates a life interest-. In Soames v. Martin,1 the
110 Sim. 287.
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Vice-Chancellor (Sir L. Shadwell) remarked that all persons whohave attained majority are not in a state in which they do not wanteducation, and there is no period of life in which a person doesnot require maintenance; and in William v. Paptoorth1 the PrivyCouncil, per Lord' Macnaghten, laid down that the provision formaintenance of adults is no more than a provision for their benefit.
JOSEPH et al. v. MAARTENSZ et al