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LUSHINGTON v. SAMARASINGHE el al.
D. C., Malara, 1,263.Fidei commissum—Saleable interest—Contingent right.
A joint will of a husband and wife contained the followingclause:—“ On the death of both of us, the donors, the above-“ named seven donees, or their heirs, &c., shall possess the said“ two lands thus gifted over, but shall not sell, gift, or mortgage“ the same; and on occasion of their necessity to lease the same,“ they shall so lease among themselves, the above-named co-“ owners, but not to any outsiders.”
Held, that the words did not create a- fidei ccnwniasum.
The interest of one of the said children was sold by the Fiscalbefore the death of one of the parents.
Held, that the sale was a good one, and that the purchaser at theFiscal’s sale was entitled to the share purchased by him.
^I^HE facts appear in the judgments.
Domkorst (Sampayo with him), for appellant.
Wendt, for respondent.
Cur. adv. wit.
3rd February, 1897. Lawrie, J.—
Don Carolis was one of the seven children of Don Siman deSilva and his wife Nona Baba.
His parents by a joint deed gifted all their lands to the sevenchildren; the deed stated “ that on the death of both of us, the“ donors, the above-named seven donees, or their heirs, &c. (sic),“ shall possess the said two lands thus gifted over, but shall not“ sell, gift, or mortgage the same ; and on occasion of their necessity“ to lease the same, they shall so lease among themselves, the above-“ named co-owners, but not to any outsiders.”
The father, Don Siman, died, but before the death of theirmother Don Carolis got into debt, and on a decree against himone-seventh of the land was seized and sold by the Fiscal, and aconveyance was* made in favour of Don Thepanis, the purchaser.
In the following year Government acquired part of the landsgifted for the Matara railway, the price was deposited as subjectto a fidei commissum, and for the purpose of having the rights ofthe claimant’s interest a reference was made to the District Court.The District Judge held that all Don Carolis’s right to the moneyin deposit had passed on to Don Thepanis by the Fiscal’sconveyance.
Against this ruling the unsuccessful claimant has appealed.
I am of opinion that the deed does not create a fidei commis-,sum. Each of the seven children take a seventh in fee, no trustis created in them for any one else ; the donors clearly expressed
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February 3,Lawbih, J.
their desire that the lands should not be sold or burdened bytheir children', but so far as I can see these children would notviolate the wish of their parents, if at their deaths they by willleave their share of the lands as they please.
There is no mention of the person or class of persons who shouldtake on the death of the seven children. If they took withoutundertaking a trust for the benefit of others, they took in fee. .
The remaining question is whether Don Garolis’s interest inthe lands could be seized and sold by the Fiscal before he succeededto possession on the death of his mother.
The Civil Procedure enacts that “ an expectancy of succession“ by survivorship or other merely contingent or possible right of“ interest shall not be liable to seizure or sale.”
Here the Fiscal professed to sell a seventh of the lands. Hadthe execution-debtor anything more than an “ expectancy of“ succession by survivorship ” in that undivided one-seventh ?
At first I was inclined to the opinion that the donee had nomore than an expectancy of succession by survivorship. Unless hesurvive his mother he will get no benefit from the donation, andit seemed to me that the policy and the procedure of the law asto execution of decrees for debt was to confine execution to rightspresently enjoyed by the debtor, and to discourage the dealing byheirs or their creditors with their expectancy of succession in. theestates of their parents, &e.
However I find that the words “ an expectancy of succession“ by survivorship ” have a well ascertained meaning in EnglishLaw. The right of this donee is that of a remainder man.
It is fixed English Law “ that if there be no uncertainty in the“ person or event upon which the remainder itself is limited, the“ mere uncertainty whether it will ever take effect in possession“ is not sufficient to give it the character of a contingent remain-“der.”
“ Thus ” (continues Blackstone, from whom I am quoting) “ in“ the case of a lease to A for life, remainder to B for life, the limi-“ tation of the remainder is to a person in being and ascertained,-“and.the event on which it is limited is certain, viz., the deter-“ mination of A’s life estate ; it is therefore a vested, and not a“ contingent remainder, and yet it may possibly never take effect“ in possession, because B may die before A.”
In another place Blackstone defines estates in possession' as“ those whereby a present interest passes to and resides in the“ tenant not depending on any subsequent circumstance or eon-“ tingence.”
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On considering these and other authorities I am satisfied thatthe interest of the donee in this case was not an “ expectancy of“ succession by survivorship or other merely contingent or possible“ right of interest.” It was a present right which the donee haddisposing power over, and which the Fiscal could seize andseU.
I am therefore content to affirm.
The question in dispute is whether the share of Don Carolis inthis fund belongs to the purchaser at a Fiscal’s sale of Don Carolis’sinterest in the land acquired by Government; in other words,was this share in the land property which the Fiscal could seizeand sell ? It was contended that this was not a saleable interest,and for two reasons : the document which created Carolis’s interestmade it also a trust which he could not alienate. Further, thedocument which created this trust was a will, so that at the dateof the Fiscal’s sale the share of Carolis was a mere expectancy.Now, by the 218th section of the Code, letter k, an expectancy ofsuccession by survivorship or other merely contingent or possibleright of interest, is not liable to execution. If the document whichcreated this interest were a will, the interest left under it would bepurely contingent, but in my opinion this doctrine is a donationinter vivos, not a last will. It begins with the operative words,“ We have gifted to our seven dear children the following parcels,”
. and it concludes with these words : “ We have signed and granted“ this gift, so that any one of the seven donees who pleases may keep“ it in his or her possession.” Having described the parcels thepossession of the premises is postponed to the death of the donors.This is a form of donation inter vivos which we have frequentlyrecognized. It gives an immediate interest to each of the donees.There was nothing expectant or contingent about it.
Lastly, I do not consider that these premises were impressed witha true fidei commissum; there is no indication as to the future ofthe trust. No doubt the donors wished that their children shouldenjoy the premises, for there was a prohibition against alienationby any of the donees, and if necessity compelled a donee to leasehe was to let it to the other donees, but there was no prohibitionagainst the shares being disposed of by last will, and there are nowords indicative of any person or persons to whom the propertywas to be preserved. On all these points I am against the appellant.I think the judgment should be affirmed.
February 3.' Lawbie , J.
LUSHINGTON v. SAMARASINGHE et al