( 75 )
Present: The Hon. Sir Joseph T. Hutchinson, .Chief Justice,
Mr. Justice Middleton, and Mr. Justice Wood Renton.
KADIJA UMMA et oId. MEERA LEBBE et al.
D. C. Colombo, 14,396.
Election, doctrine of—Approbation or reprobation—Knowledge of testator—Fact of election—English Law—Roman-Dutch Law.
A person who accepts a benefit under a deed or will is bound toconfirm the whole instrument, conforming to all it-s provisions andrenouncing every right inconsistent with them.
Nogs o. Mordaunt 1 followed.
This rule applies whether the testator thought he had the right,or, knowing the extent of his authority, intended by an arbitraryexertion of power to exceed it.
Whistler v. Webster2 followed.
EARING in review at the instance of the plaintiffs of thejudgments of the Supreme Court reported in (1903) 7 N. L. R.
S3, where the facts are fully stated.
Bawa, Acting S.-G. (with him H. A. Jayewardene), for the plaintiffs,appellants.
Sam-payo, K.C., for th.e defendants’, respondents.
Cut. adv. vult.
March 6, 1908. Hutchinson C.J.—
The claim in this action is'that the first plaintiff may be declaredentitled to an undivided one-fourth of premises in Main street.Colombo, and for mesne profits, and for possession. The contestis now as to part only of the premises, viz.., No. 90. The secondplaintiff is joined as the first plaintiff’s husband and the defendantsare her brothers.
By deed of July 17, 1872, the grandfather of the first plaintiff andof the defendants conveyed the premises to their father IbrahimLebbe; and it has been held by this Court, a’nd is not disputed,that this deed created a fidei commissum, after Ibrahim Lebbe’s
i (1708) 2 Vem. 581.2 (1794) 2 Fes. Jun. 867.
(. 76 )
ISOS.death, in favour of his four children, the Srst plaintiff and the
Marche, defendants, and their issue; so that on his death the first plaintiffHutchinson ^ecame entitled under it to one undivided fourth of the premisesO.J. for her life.
Ibrahim Lebbe, by his will dated January 29, 1893, gave No. 90,Main street, specifically to the defendants, and, after anotherspecific devise, directed that all the residue of his property shouldgo to his wife and his said four children “ according to our religion.”He died on January 31, 1893. His will was proved on March 4,1893. The inventory filed on June 22, 1893, enumerates a largenumber of properties belonging to the estate, including the otherproperty specifically devised, but does not include No. 90, Mainstreet.
By deed of November 10, 1893, made between the widow and thefour children and the daughter’s husband, after reciting that thetestator was entitled to the properties mentioned in the. schedulethereto, and reciting his will and death and the probate of the will,and reciting that according to the Muhammadan religion the widowwas entitled to one-eighth share of the residue and the daughter toone-eighth, and each of the three sons to two-eighth shares, and thatthe parties had agreed to a division of all the immovables, certaindivided portions thereof enumerated in the five parts of the schedulejvere allotted to and accepted by each of the five parties in fullsatisfaction of their said shares.
The defendants have been in possession of No. 90, Main street, eversince the testator’s death.; and the parties have been in posses-sion of the shares allotted to them by the deed of 1893 ever sincethe execution of that deed.
The plaintiffs brought this action on December 15, 1900. Thedefendants in their answer first said that the provision in the deedof July 17, 1872, in favour of the children of Ibrahim Lebbe, wasexpressly subject to the qualification that he might give the premisesto his heirs (a defence which is not how insisted upon), and theyfurther said that the first plaintiff, after the death of the tesitator,elected to accept, and did accept, the benefits given to her by hissaid will, and that she was thereby precluded from claiming anyshare in the premises which were devised to the defendants bythe will.
The plaintiffs insist on their right to retain the benefits given tothe first plaintiff by the will, and also to retain the one-fourth sharein the house No. 90, Main street, which the testator purported todevise to the. defendants; whilst the defendants contend that she. was bound to elect whether she would take under the will or againstit, and that by, the deed of November, 1893, she elected to takeunder it. That is the contest now, whether she was bound to elect,and if so, whether she did so elect. The Supreme Court, by itsjudgments dated June 5, 1903, and June 28, 1905, decided in favour
( 77 )
of the defendant’s contention; and this is a hearing in reviewbefore appeal against those judgments to His Majesty inCouncil.
I agree with the judgment of June 28, 1905, that the first plaintiffwas bound to elect. She cannot, however, be said to have electedto take the benefit given to her by her father’s will and to give upany inconsistent claim which she had to any of the property withwhich the will purported to deal, unless she knew that she had somesuch claim. No issue was settled, and no evidence was given on thequestion whether she had such knowledge; so that, if the judgmentsunder review are to stand, it must be because the admitted factsand documents prove that she had such knowledge. The plaintiffsdo not say when it was that she became aware of her rights, orwhether the fact was that at the date of the deed of 1893 she didnot know of the existence of the settlement of 1872, or whether itwas that she knew of its existence but mistook its effect. Theinventory, which excludes the Main street property, shows that theexecutor at any rate knew that the property was not part of thetestator’s estate, although there is no evidence as to whether thedaughter saw the inventory. In my opinion these circumstances,coupled with the fact that for seven years after the deed of 1893the parties had possession of all the properties mentioned in thewill, including that which is now in dispute, in accordancewith the terms of the will, required some explanation from theplaintiffs.
There is the further fact that her share, to which she was entitledabsolutely under the will was according to the inventory aboutRs. 27,000 (i.e., one-eighth of Rs. 222,219), and that she actuallytook under the deed of 1893 immovables of the value (as the DistrictJudge finds) of Rs. 21,500; whereas her one-fourth share of No. 90,to which she was entitled only for life, was probably of very muchless value. There is no positive evidence of the value of^No. .90;but the four houses on each side of it, Nos. 88, 89, 91, and 92, givean annual nett rental of Rs. 700 each, or a total annual rental ofRs. 2,800; and the plaintiffs themselves in their plaint put the rentalof all the five houses at Rs. 5,280 (i.e., Rs. 440 a month), so thataccording to the plaintiffs’ own estimate the value of No. 90 wouldonly be Rs. 2,480, and the plaintiffs’ one-fourth share of it would beRs. 620. And Rs. 27,000 absolutely is certainly worth a great dealmore than Rs. 620 a year for life.
I think that upon the facts set out in the pleadings and upon theallegation in Hie answer that. the daughter had made her electionto take under the will, it was incumbent on her to at least assertthat she did not know of her rights at the time of the allegedelection, and that it is a reasonable inference that she did know ofthem. I would therefore affirm the judgments under review withcosts.
( 78 )
The facts of' this case so far as they are material to the ques-tion before us are set out in the judgment of my brother Wendtunder review, and I do not propose to recapitulate them. On .thetrial of the original action no agreed case appears to have beenstated, and no issues were settled and agreed to, and the Courtapparently decided the questions before it on the pleadings andarguments of counsel.
The first point raised before us, as I understand Mr. Bawa, isthat the plaintiff ought not to be put to an election here, inasmuchas the testator erroneously believed the devised tenement belongedto him, and therefore by the Roman-Dutch Law the bequest wasvoid. This appears to have been the Roman Law as laid down in.Justinian’s Institutes 11, 24, 1, in that respect different to EnglishLaw, which upholds the validity of the bequest and enforces thedoctrine of election, whether the testator knew that the propertydevised belonged to another or whether he erroneously supposed itto belong to himself (Snell 808).
In the present case the property devised is, in my opinion, clearlythe tenement No. 90, and not the contents of a shop and its businessas a going concern. This was admitted by counsel for the appellanton the hearing, and upon the trial of the issue, which'was remitted,by this Court to be tried by the District- Court, the District Judgefound that the will only referred to that part of the fidei commissumland coloured pink and white and bearing assessment No. 90 inMr. Leembruggen’s plan X. There is no reason to hold that hisfinding is incorrect.
We have, therefore, here a bequest of property in which a lifeinterest belongs to certain fidei commissarii, amongst whom wasthe plaintiff, one of the heirs of the testator, which could not beacquired till after the testator’s death, coupled with a disposal ofresidue, to a part of which the plaintiff would have been entitledas heiress in the absence of the will, and Burge says, whether it wasthe testator’s belief that the property belonged to himself or not,it would not exempt one of the heirs if he. accepts the inheritancefrom delivering it to the legatees (4 Burge 713).
The heir is bound to, approbate or reprobate the will. Section 26 ofbook XXX.—XXXII., Voet (Buchanan’s translation), also is authorityfor the obligation of the heir to deliver his bequeathed property tothe legatee, whether the testator knew or did not know it was hisown property he was bequeathing, and making a distinction betweenthe property of another than the heirs dealt with by a testator,says “ that the heir is always bound to deliver up his own property,even though the testator has treated it as his in the bequest,”subject no doubt to the right to elect whether he should reprobateOr approbate the will altogether.
( 79 )
If the property bequeathed was that of another than the heir ofthe testator, the heir could treat it as invalid, unless the legateeproved that the testator knew it was the property of another(ibid).-
See also Nathan, vol. IX., 1884-1885. quoting Lucas v. Hoole,1which would appear to discountenance the doctrine of compensationknown to English Equity Courts.
Even if the plaintiff here is looked upon as a third person and notas an heir of the testator, there is no necessity, I think, for thelegatee defendants to prove that the testator knew it was not hisown property he was disposing of, inasmuch as, if he knew thecontents of the deed P 1, he must have been well aware that the lifeinterest of the plaintiff after his death was not his own property.This point must therefore, I think, be decided against the plaintiff,in whose favour the English cases quoted can be of no avail, andI must hold that the bequest of No. 90 was not invalid, and thatthe plaintiff was bound, under the Roman-Dutch Law, to electwhether to approbate or reprobate the will.
The next point is, Has the plaintiff elected in favour of the will?In my opinion she has, and I think the reasons given by my brotherWendt and Layard C.J., are amply sufficient to show this.
That she must have known also of her legal position as regardsher life interest in No. 90 and her rights as an heiress to a share inthe residue of her father’s estate is, I think, indicated by the factthat the deed No. 2,067 was entered into with the assistance of herhusband and, no doubt, with the advice of a competent legaladviser.
It is true that in the deed of gift P 1 the property is describedas one house and ground, but it is impossible to believe that theplaintiff and her husband were not well aware what that particularproperty was, a share of which was settled on her in fidei commissum,or that she did not know that it had been divided by Municipalnumbers and that No. 90 was a part of it. There is nothing toshow that the plaintiff has beeen deceived, and she must have beenin a position to understand what her rights were.
That this election also took place is, I think, further confirmed byher long acquiescence in the position adopted by the parties underthe deed. I agree also that the property in No. 90 disposed of by thetestator was only the life interest of the plaintiff.
In the present case the election is in favour of the will, and theEnglish doctrines of compensation alluded to by my brother Wendtneed not, I think, concern us at present.
I would affirm the judgment under review and dismiss the appealwith costs.
1 Buchanan U879) 143.
( 80 )
Wood Benton J.—
I agree with" the rest of the Court on the question as to theobligation to elect. But I do not think that on the evidence beforeus Kadija can be said to have as yet elected to take under IbrahimLebbe’s will.
I will state my reasons as briefly as possible, noticing only thefresh points brought before us in review. The first question to' bedecided is, whether the fact, if it be a fact, that the testator wasunaware that he had no disposing power over premises No. 90makes the doctrine of election inapplicable? The Solicitor-General,in pressing us to answer this question affirmatively, relied mainlyon two passages in Burge’s Commentaries:—
“ To raise an implied condition on acceptance, the intention toimpose it must be clear beyond all doubt.” (Fol. IV. 716).
” The foundation of the equitable doctrine of election is theintention, express or presumed, of the author of the instrument towhich it is applied. And such is the import of the expressions bywhich it is described as proceeding, sometimes on a tacit, implied,or constructive condition, sometimes on equity. From this prin-ciple the whole doctrine, with its distinctions and exceptions, isdeduced.” (Vol. IV. 717.)
In view of the fact that, admittedly under Eoman and Roman-Dutch Law, a bequest to a third person of the property of an heir isvalid whether the testator was or was not under the belief that thesubject belonged to himself, it might seem almost unnecessary todeal with this question. As residuary devisee, Kadija must, Ithink, be regarded as being in the position of an heir. But even ifthe fact were otherwise, I should hold that the doctrine of electionwould apply. I do not think that either of the passages above citedsupports the inference which Mr. Bawa sought to draw from them.The former must, in any event, be read together with the latter,which is taken bodily from Mr. Swanston’s note to Dillon v. Parker.1In th.at note (ubi inf. at page 407) the view that an heir cannotbe put to an election by a devise under an erroneous supposition oftitle is expressly declared to be contrary to authority, and theEnglish decisions cited both by Burge and by Swanston in dealingwith election show that this is so. I put aside at once the classof cases of which Judd v. Pratt 2 may be taken as an example. Theyrelate only to the ascertainment of the corpus of a bequest. The‘Tusstion involved in them is, Wha.t did. the testator intend to disposeof?—not—Did the testator know that the property he was dis-posing of was not his own? See further as illustrations of the samepoint: Dummer v. Pitcher,a Allen v. Anderson,* and the local case
i (2818) 1 Swans 403.3 (2833) 2 My. t K. 276.
a (1806) 13 Ves. 168.4 (1846) 5 Hare 169.
( 81 )
•of Teyvana v. Sinnecooty.1. The principle was established in EnglishLaw by Noys v. Mordaunt2 that he who accepts a benefit under adeed or will is bound to confirm the whole instrument, conformingto all its provisions and renouncing every right inconsistent withthem. See also Streatfield v. Streatfield,i * 3 * * * and Clarke v. Chiise * Anattempt was made, however, to engraft on this principle the ruleof the Civil Law that a bequest on the erroneous supposition that thesubject belonged to the testator was void (Inst. 2, tit. 20, 4, Dig. 31,tit. 67, 8), unless the legatee stood in- a certain degree of relationshipto him, see Forrester v. Cotton;* Cull v. Show ell.3 Blit it provedunsuccessful. In the leading ease of Whistler y. Webster,7 ArdenM.R. laid down the rule of law thus: “ Whether (the testator)thought he had the right, or, knowing the extent of his authority,intended by an arbitrary exertion of power to exceed it, no persontaking under the will shall disappoint it.” [Cf. also Anon,3Wright v. Rutter,* Rutter v. Maclean 1#]. I take it, therefore, thatthe Solicitor-General’s first point is bad from the standpoint ofEnglish Law. I think it is equally little entitled to succeed underBoman-Dutch Law. In a passage borrowed, like the citation fromBurge given above, from Mr. Swanton’s note to Dillon v. Parker,11Nathan (Com. Law of S. A. 3, S. 1863) adopts, as the general ruleof law, the view that he who accepts a benefit under a will is boundto confirm the whole instrument, and the following passage fromVoet (Bk. 30, S. 26) embodies a sufficiently numerous and compre-hensive class of exceptions to the doctrine heres rem alienampress tare cogitur, nisi testator earn sciverit alienam esse, to enable thegeneral rule, as stated by Nathan, to be applied in most cases, andcertainly in.such a case as the present: —
Aliena vero non alitor redimenda vel cestimatio ejus per heredemsolvenda, et hoc ipsum per legatarium, tanquam actorem et affirmantem,probetur, nisi testator rem alienam legaverit conjunctce personae-, veljusserit ut heres praecepto c-erto f tin do, qui alienus erat, hereditatemreliquam restituat vel res suas inter heredes suos divendo, uni remnon suam assignaverit, vel picc aut alterius favorabiUs causae ratiolegati validitatem ex aequitate sustineat.”
It was not contended before us that the special doctrines of EnglishEquity Jurisprudence (a) that, upon a devisee electing against a will,
• equity will sequester the property devised to him for the purpose ofmaking satisfaction out of it to the person whom his election hasdisappointed, or (b) that a refractory devisee may retain bothbenefits upon condition of making good to the disappointed devisee
i(1864) Ram. 1863-68, 103.' (1794) 2 Ves. Jun. 367; 10 Rut.
– (1706) 2 Venn 581.Cos. 315.
3 (1735)White 4 TudorL. C., 7th ed., 416.8 (7 Anne) Oilb. Eq.Rep. 15.
* (1755)2 Ves. Sen.617.•(1795) 2 Ves. Jun.673.
(1760)Ambl. 388.13(1799) 4 Ves. 531.
« (1773)Ambl. 727.11 1 Swans. 403.
. ( 82 )
the value of the property intended by the testator for him, are inforce in Ceylon. I have nothing to add to what Wendt J. has saidin regard to these points in the judgment under review. It clearlyresults, in my opinion, from clauses 2 and 4 of his will, that thetestator did not intend Kadija to have both her share of the residueand any interest that might belong to her in the fidei commissumproperty. Clause 2 of the will, in view of the express distinctiondrawn in it between “ the shop No. 90 ” and “ the goods therein ”cannot be construed as restricted to the goodwill of the testator’s-business. The corpus of the bequest is clearly ascertained.
The only question that remains, therefore, is whether Kadija mustbe taken to have in fact made her election under the will? Onthis point I come, with hesitation and diffidence, to a conclusiondifferent from that of Layard C.J. and Wendt J. There is nocontroversy as to the law applicable to the decision of cases ofelection by conduct. The election must be by a person who knowswhat his rights are, and with that knowledge really means to elect(Wilson v. Thombury 1). The same principle was laid down in anexpanded form by Romilly M.R. in Worthington v. Wiginton,2“ With reference to the argument that this lady was not cognizantof her rights and had no knowledge of the law, I will now state thatevery one is assumed to know that, if he takes under a will, he mustgive full effect to it, and that he cannot be allowed to adopt thatpart of it which is for his advantage and reject that which is not-but whether the person taking under the will knew he had an interestadverse to it is a question of fact resting on evidence.”
entirely agree that, in the present case, the evidence shows thatKadija accepted the interest given to her under the deed of partitionwith full knowledge of the provisions of the will and in lieu of herclaims thereunder. But what evidence is there that she or herhusband was ever aware that she had ” an interest adverse ” to thewill? The existence of that interest depended on the constructionof the fidei commissum of 1872, which was certainly not ex facieobvious, and which was only judicially determined in the present,action. I do not think that Kadjia can be fixed by implication withknowledge of restrictions on the testator's disposing power, whichhave had to be established by litigation (see Pusey v. Desbouvrie 3}ror that, under the circumstances of the present case, the burdenrested on her of raising this point in the Court below. If it hadbeen clear on the face of the fidei commissum that Ibrahim Lebbecould not deal with the property comprised in it by way of testa-mentary disposition, or deal even by disposition inter vivos with anyinterest created by that fidei commissum other than his own lifeinterest, I agree that a strong presumption of an election havingbeen made would arise from the terms of the deed of partition
i (1875) L, R. 10 Ch. 239.2 (1883) 20 Beat. 67, at page 73.
2 (1734) 3 P. Wins. 315 , 322; 10 Rul. Cos. 351.
entered into by Kadija and her husband, and from the fact of thatdeed having been acted upon by all parties for many years withoutquestion. But it is otherwise, I think, where the existence of thelimitations on the testator's disposing power is not apparent,, but,on the contrary, is open to elaborate argument in a Court of Law.I would hold that Kadija has not elected as yet either under oragainst Ibrahim Lebbe’s will, and that, while she is now bound toelect, she ought to have, if she desires it before doing so, theadvantage of further inquiry in the District Court as to the res-pective value of the inconsistent and alternative .rights created bythe fidei commiseum and the wall.
As, however, the view of the majority of the Court on this point-is different from mine, the judgment .under review wrill be affirmedwith costs.
Judgment in appeal affirmed.
KADIJA UMMA et al. v. MEERA LEBBE et al