014-NLR-NLR-V-09-MENDIS-v.-FERNANDO-et-al.pdf
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Present The Hon. Mr. A. G. Lascelles, Acting Chief Justice, andMr. Justice Middleton.
MENDIS v. FERNANDO et al.
C., Colombo, 21,429.
Joint will—Legacy—Deathoflegateebefore survivor—Construction—
“ Afterthe death ofbothof us"—Usufructuary interest—Fiduciary
interest—Intenlion.
If a bequest contains words of futurity, the question must beconsidered whetherthey wereinsertedfor thepurposeof
postponing the vesting of the legacy, orofmerelydeferringthe
fulfilmentof the legacy, aswherethe bequest to one person is
made subject to alife-interest infavourofanother.If suchlife-
interest is merelya usufructuaryone, thelegacyvests inthe
legatee immediately on the death of the testator; if it be' a fiduciaryinterest, the vesting of the legacy is poitponed till after the deathof the fiduciarius.
'Wherea joint will -madeby husband and wife contained the
following clause:" The remaining half of tde Sandy land is to be
divided into three portions, and after the respective death of both
of us two shares is to go to and J of the rest4 of the land
to our adopted sons Elias Fernando and Andris Fernando,” andwhere the testator died in 1855, the testatrix in 1899, and Andrisin 1889—
a
Held, that the interest left to the survivor under the will wasmerely a usufructuary interest, and that the legacy vested in Andrisimmediately on the death of the testator, and that a sale by Andrisof his interest before the death of the testatrix was valid.
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NTERPLEADER suit brought by the executor of the joint lastwill and testament of Gabriel Fernando and‘his wife, Poloriana
Mendis, to have the judgment of the Court on the construction of thefollowing clause in the will; “ The remaining half put of the Kandyland is to be divided into three portions, and after the'respective death
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1906. o/ both of us two shares is to go to and one-sixth out of the
April 12. re8j. 0f iand to our adopted sons Elias Fernando and Andris
Lascelles Fernando. ’ ’
A.C.J.
The testator died in 1855, the testatrix in 1899, and Andris in 1889.
In 1872 Andris sold his interest to one Francisco Fernando, whowas married to one Sarah • Cooray. Francisco Fernando died in1884, and Sarah Cooray, as his executrix, sold his interest in 1899 tothe first defendant. The, contest was between the first defendantand 2nd, 4th, 5th, 6th, and 7th defendants, who claimed the sharethat belonged to Andris as his heirs. The District Judge (F. B.Dias, Esq.) held in favour of the 1st defendant. The other defen-dants appealed.
H. J. C. Pereira, for the appellants, contended that the legacy didnot vest in Andris till after the death of both the testator and the tes-tatrix, and that at the time that Andris conveyed his interest, he hadno interest whatever. He cited 9 8. C. C. 101 and Grotius 2, 22, 18.He also contended that the deed purporting to be signed by Andriswas a forgery.
Schneider, for the respondent, cited Van Leeuwen’s Gens. For.8. 8. 29, 30; and Maasdorp’s Institutes of Gape Law, vol. I.p. 176.
Cur. adv. vult.
12th April, 1906. Lascelles A. C. J.—
The appellant in this appeal contends that the District Judge waswrong in holding that the deed No. 145, dated 23rd August, 1872,whereby Andris Fernando purported to sell his share in a house inColombo street, Kandy, was a genuine instrument; he further con-tends that at the date of that instrument Andris Fernando had novested interest in the property in question.
On the first point I am not prepared to differ from the conclusionat which the District Judge has arrived after a careful examinationof the evidence. The second question turns upon, the constructionof the joint will of Gabriel Fernando and his wife Poloriana. Theappellant contends that under this will Andris, who pmdeceased thesurviving widow, took no vested interest. The respondent on theother hand contends that upon the death of the testator Andristook a vested interest subject to the usufructuary interest of thesurviving widow. The law is clearly summarized at page 176 of Vol.
of Maasdorp’s Institutes of Gape Law as follows:—“ If the bequestcontains words of futurity, the. question will be whether they wereinserted for the purpose of postponing the vesting, or of merelydeferring the fulfilment of the legacy, as where the bequest to one
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person is made subject to a life-interest in favour"*of another. Insuch a case the further question arises whether the person is a usu-fructuary or a fiduciary legatee. In the former case the legacy,as a general rule, vests in the remainderman immediately upon thedeath of the testator, and in the latter the vesting is postponedtill the death of the fiduciary legatee.”
The intention of the joint testators seems to me to be clear. Inclause 3 of the will the wishes of the joint testator with regard tocertain land is thus expressed: “ after being possessed by the survivorof us we have directed that the same be equally divided between thepersons therein named.
In clause 4 the gift with regard to part of the'house in Colombostreet is similarly expressed: ” After being possessed by the survivor ofus we have directed that the same be equally divided into eight shares,as follows ”.
In clause 5, which is the material clause, the gift is in these words:.” The remaining half of the Kandy land is to be divided into threeportions, and after the respective death of both of us two shares is
to go to and & of the rest of the land to our adopted sons
Elias Fernando and Andris Fernando.”
It seems to me plain that the intention of the testators was thatthe legatees should take the properly, subject to the usufruct of thesurviving testator. There is nothing in the will which indicatesthe intention that only those legatees should take who might beliving at the death , of the surviving spouse.
We have been pressed with the decision of this Court in Joachinoev. Roberta (1).
It is not necessary to consider the correctness of the decision, as thelanguage of the will in that case differs considerably from that of thewill now under consideration. In my judgment the daemon of the- District Judge was right on both points, and I would dismiss theappeal with costs.
1906.April 12.
A.C.J.
Middleton J.—I agree.
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(1) (1890) 9 8. C. C. 101.